Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised. (b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities). (c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement. (d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights. (e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights. (f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the number of Preferred Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate. (g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent. (h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof. (i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request. (j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 3 contracts
Samples: Rights Agreement (California Amplifier Inc), Rights Agreement (CalAmp Corp.), Rights Agreement (California Amplifier Inc)
Exercise of Rights. Expiration Date of Rights.
(a) Until the Distribution Date, no Right may be exercised.
(b) Subject to --------------------------------------------- Section 7(d7(e) and except as otherwise provided herein (g) hereof and including Section 11), each Right shall entitle the other provisions of this Agreementregistered holder thereof, upon exercise thereof as provided herein, to purchase for the Purchase Price, at any time after the Close of Business on the Distribution Date and at or prior to the earlier of (i) the Close of Business on _______, 2008 (the earlier Close of Business on such date being the "Expiration Date"), or (ii) the Redemption Date or the Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth (l/100th) of a Preferred Share (orShare, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement12.
(db) Notwithstanding anything The registered holder of any Right Certificate may exercise the Rights evidenced thereby (except as otherwise provided herein) in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event whole or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder in part at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority upon surrender of the Board Right Certificate, with the form of Directors shall have determined that such action adequately protects election to purchase on the interests reverse side thereof duly executed, to the Rights Agent at the principal office of the holders of RightsRights Agent in Jersey City, the Company mayNew Jersey, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and together with payment of the Exercise PricePurchase Price for each one one- hundredth (1/100th) of a Preferred Share as to which the Rights are exercised, at or prior to the earlier of (i) cash, the Expiration Date or (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding RightsRedemption Date.
(fc) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and purchase duly executed, with signature guaranteed, accompanied by payment of the Exercise Purchase Price for each Right the Preferred Shares to be exercised and purchased together with an amount equal to any applicable tax transfer tax, in lawful money of the United States of America, in cash or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check money order payable to the order of the Company, the Rights Agent shall thereupon promptly (i) either (A) promptly requisition from the any transfer agent of the Preferred Shares (oror make available, following if the occurrence of a Section 11(a)(iiRights Agent is the transfer agent) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the number of Preferred Shares (or such other securities) to be purchased, purchased and the Company hereby irrevocably authorizes such its transfer agent to comply with all such requestsrequests or (B) if the Company shall have elected to deposit the Preferred Shares with a depositary agent under a depositary arrangement, and/or, as provided in Section 14 hereof, promptly requisition from the depositary agent described therein depositary receipts representing such the number of one one-hundredths (1/100ths) of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) to be represented by such receipts shall be deposited by the transfer agent with such the depositary agent) and the Company hereby directs such will direct the depositary agent to comply with all such requestrequests, (ii) when necessary to comply with this Agreementappropriate, promptly requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) shares in accordance with Section 14 hereof15, (iii) promptly after receipt of such certificates, certificates or depositary receipts or cashreceipts, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreementappropriate, after receipt thereof, promptly deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(hd) In case the registered holder of any Right Certificate shall exercise less fewer than all of the Rights represented evidenced thereby, a new Right Certificate representing evidencing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent and delivered to the registered holder of such Right Certificate or to such holder's his duly authorized assigns, subject to the provisions of Section 14 hereof15.
(ie) Notwithstanding anything in this Rights Agreement to the contrary, any Rights that are at any time beneficially owned by an Acquiring Person or any Affiliate or Associate of an Acquiring Person shall be null and void and nontransferable, and any holder of any such Right (including any purported transferee or subsequent holder) shall not have any right to exercise or transfer any such Right.
(f) Notwithstanding anything in this Rights Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights any Right Certificates upon the occurrence of any purported exercise as set forth in this Section 7 unless such registered holder shall have (i) completed and signed the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Right Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been (ii) provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall reasonably request.
(jg) Neither The Company may temporarily suspend, for a period of time not to exceed 90 calendar days after the Distribution Date, the exercisability of the Rights in order to prepare and file a registration statement under the Securities Act, on an appropriate form, with respect to the Preferred Shares purchasable upon exercise of the Rights and permit such registration statement to become effective; provided, however, that no such suspension shall remain effective -------- ------- after, and the Rights shall without any further action by the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as become exercisable immediately upon, the effectiveness of such registration statement. Upon any such suspension, the Company shall issue a result public announcement stating that the exercisability of the Company's failure Rights has been temporarily suspended and shall issue a further public announcement at such time as the suspension is no longer in effect. Notwithstanding any provision herein to make the contrary, the Rights shall not be exercisable in any determination jurisdiction if the requisite qualification under this Section 7 the blue sky or any other section with respect to a 20% stockholder securities laws of such jurisdiction shall not have been obtained or an Affiliate or Associate the exercise of a 20% stockholder or transferees hereunderthe Rights shall not be permitted under applicable law.
Appears in 3 contracts
Samples: Rights Agreement (Sonosight Inc), Rights Agreement (Sonosight Inc), Rights Agreement (Handheld Ultrasound Systems Inc)
Exercise of Rights. (a) Until To exercise a Put Right, Rich shall deliver a written notice (the Distribution Date"Notice") to the Company and the other Members. To exercise a Call Right, no Right the Company shall deliver a Notice to Rich and the other Members. In each case the Notice shall specify the number and type of Interests to be put or called consistent with the provisions of Sections 9.2 and 9.4 (the "Subject Interests"), the applicable aggregate Price and the applicable date for the consummation of the put or call. The "Price" of any Subject Interests shall be (i) with respect to Series B Cumulative Preferred Interests, the Redemption Value of such Series B Cumulative Preferred Interests, and (ii) with respect to Common Interests, the Initial Capital Contribution in respect of such Common Interests. The Notice shall contain an irrevocable offer to sell or purchase (as the case may be exercisedbe) the Subject Interests in the manner set forth below at the applicable aggregate Price. The closing of the purchase of the Subject Interests (the "Closing") shall take place at the principal office of the Company on the tenth business day after the date of the Notice. At such Closing, the purchasing party shall deliver to Rich a wire transfer in the amount of the applicable aggregate Price.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior Notwithstanding anything to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby contrary contained in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteedthis Article IX, to the Rights Agent extent that the payment for the Subject Interests by the Company with its cash would, at the office time of payment or issuance thereof, constitute or cause a breach or default (immediately or with notice or the lapse of time or both) under any agreement or instrument to which the Company is a party or by which the Company or any of its assets is bound, or violate any law, statute, order, writ, injunction, decree, judgment, rule, regulation, policy or guideline promulgated, or judgment entered by any United States federal, state or local, or foreign court or governmental authority applicable to the Company, or to the extent that the Company does not have sufficient cash to pay the applicable aggregate Price, then all of the Rights Agent designated for such purposeCompany's rights and obligations in respect of a validly exercised Put Right shall be assumed by CSX and NSC (or, together with payment of at CSX's and NSC's respective election, their voting trusts or successors or permitted assignees) in equal proportions.
(c) Notwithstanding anything to the Exercise Price for each Right exercised. Upon contrary contained in this Section 9.3, but subject to the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions terms of this Agreement, the holder of such Right shall be entitled Company may at its election (exercised pursuant to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following vote solely by the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for CSX Director and the exercise of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money of the United States of America NSC Director in accordance with Section 7(f5.3(c)) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event assign all or a Section 13(aportion of its Call Right to CSX and NSC (or their voting trusts or successors or permitted assignees) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreementequal proportions.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, If the Company may, in its discretion, substitute for assigns all or any a portion of the Preferred Shares that would otherwise be issuable (after the Close its Call Right or designates all or a portion of Business on the Distribution Date) upon the exercise of each its Put Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action obligation pursuant to this Section 7(e)9.3, it shall provide written notice to Rich to such action shall apply uniformly effect. CSX and/or NSC may, in connection with any such assignment or delegation by the Company, provide that the Subject Interests be conveyed to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchasethird party, including certificatea voting trust established by such party. In such event, properly completed and duly executed, with signature guaranteed, accompanied by the payment of the Exercise aggregate Price for each Right to be exercised and an amount equal to any applicable tax or governmental charge required to be paid by at the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the number of Preferred Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented Closing by such receipts third party shall be deposited guaranteed by the transfer agent with such depositary agent) CSX and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash to be paid NSC in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificateequal proportions.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Norfolk Southern Corp), Limited Liability Company Agreement (Norfolk Southern Corp)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the The registered holder of any Right Certificate may exercise the Rights represented evidenced thereby (except as otherwise provided herein, including Sections 6(e), 6(f) 8(b), 12 and 20) in whole or in part at any time after a Distribution Date and prior to the Expiration Date upon surrender of such the Right Certificate, with the form of election to purchase, including certificate, purchase and the certificate on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the principal office or offices of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money of the United States of America by certified check or bank draft payable in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event immediately available or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement next day funds to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities order of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Purchase Price equal with respect to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right Rights then to be exercised and an amount equal to any applicable transfer tax or other governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order charge.
(b) Upon satisfaction of the Companyrequirements of Section 6(a) and subject to Section 17(k), the Rights Agent shall thereupon promptly (ii)(A) requisition from the any transfer agent of the Preferred Shares Stock (oror make available, following if the occurrence of a Section 11(a)(iiRights Agent is the transfer agent therefor) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the total number of one one-millionths of a share of Preferred Shares (or such other securities) Stock to be purchased, purchased (and the Company hereby irrevocably authorizes such its transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof) or (B) if the Company shall have elected to deposit the shares of Preferred Stock issuable upon exercise of the Rights with a depositary agent, requisition from the depositary agent described therein depositary receipts representing interests in such number of one one-hundredths millionths of a share of Preferred Share (or such other securities) as are Stock to be purchased (in which case certificates for the shares of Preferred Shares (or such other securities) Stock represented by such receipts shall be deposited by the transfer agent with such the depositary agent) agent and the Company hereby directs such will direct the depositary agent to comply with such request), (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash cash, if any, to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) shares in accordance with Section 14 hereof, 11 and (iii) after receipt of such certificates, certificates or depositary receipts or cashand cash (if any), cause the same to be delivered to or upon the order of the registered holder of such Right Certificate (with such certificates or receipts registered in such name or names as may be designated by such holder). If the Company is obligated to deliver Common Stock or other securities or assets pursuant to this Rights Plan, the Company will make all arrangements necessary so that such securities and assets are available for delivery by the Rights Agent, if and when appropriate.
(c) Each Person (other than the Company) in whose name any certificate for Preferred Stock is issued upon the exercise of Rights shall for all purposes be deemed to have become the holder of record of such Preferred Stock represented thereby on, and such certificate shall be dated, the date upon which the Right Certificate evidencing such Rights was duly surrendered and payment of the Purchase Price (and any applicable transfer taxes or other governmental charges) was made; provided that if the date of such surrender and payment is a date upon which the transfer books of the Company relating to the Preferred Stock are closed, such Person shall be deemed to have become the record holder of such shares on, and such certificate shall be dated, the next succeeding Business Day on which the Preferred Stock transfer books of the Company are open. Prior to the exercise of the Rights evidenced thereby, the holder of a Right Certificate shall not be entitled to any rights of a shareholder of the Company with respect to shares for which the Rights shall be exercisable, including the right to vote, to receive dividends or other distributions or to exercise any preemptive rights, and shall not be entitled to receive any notice of any proceedings of the Company except as provided herein.
(d) In case the registered holder of any Right Certificate shall exercise fewer than all the Rights evidenced thereby, a new Right Certificate evidencing the number of Rights remaining unexercised shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof11.
(ie) Notwithstanding anything in this Agreement Rights Plan to the contrary, any Rights Beneficially Owned by (i) an Acquiring Person from and after the date on which the Acquiring Person becomes such or (ii) a transferee of Rights Beneficially Owned by an Acquiring Person who (A) becomes a transferee after the public announcement relating to a Stock Acquisition Date with respect to an Acquiring Person who was identified on the Stock Acquisition Date or (B) becomes a transferee with respect to an Acquiring Person (or an Associate thereof) and receives such Rights (I) with actual knowledge that the transferor is or was an Acquiring Person (or an Associate of an Acquiring Person) or (II) pursuant to either (x) a transfer (whether or not for consideration) from the Acquiring Person (or an Associate thereof) to holders of equity interests in such Acquiring Person (or in such Associate thereof) or to any Person with whom the Acquiring Person (or an Associate thereof) has any continuing agreement, arrangement or understanding regarding the transferred Rights or (y) a transfer which the Board determines in good faith is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 6(e), shall become null and void without any further action, and no holder of such Rights (other than a transferee not of a type described in clause (ii)) shall have any rights whatsoever with respect to such Rights, whether under this Rights Plan or otherwise. The Company shall use all reasonable efforts to ensure that the provisions of this Section 6(e) are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or any transferee of an Acquiring Person hereunder.
(f) Notwithstanding anything in this Rights Plan to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a any purported transfer pursuant to Section 5 or exercise pursuant to this Section 6 unless the registered holder of the applicable Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless (i) shall have completed and signed the certificate contained in the form of assignment or election to purchase purchase, as the case may be, set forth on the reverse side of the Rights Right Certificate surrendered for such exercise transfer or exercise, as the case may be, (ii) shall not have indicated an affirmative response to clause 1 or 2 thereof, (iii) shall be in compliance with Section 12 and (iv) shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall reasonably request.
(jg) Neither the The Company nor the Rights Agent shall have any liability hereby waives application of each standstill or other similar provision relating to any Company Securities by which a registered holder of Rights or any other Person is bound as a result of the Company's failure date of this Rights Plan to make any determination under the extent necessary to permit such registered holder to exercise such Rights in accordance with this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunderRights Plan.
Appears in 2 contracts
Samples: Shareholder Rights Plan (Sterling Financial Corp /Wa/), Shareholder Rights Plan (Sterling Financial Corp /Wa/)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the The registered holder of any Right Certificate may exercise the Rights represented evidenced thereby (except as otherwise provided herein, including Sections 6(e), 6(f) and 8(c)) in whole or in part at any time after a Distribution Date and prior to the Expiration Date upon surrender of such the Right Certificate, with the form of election to purchase, including certificate, purchase and the certificate on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the principal office or offices of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money of the United States of America by certified check or bank draft payable in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event immediately available or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement next day funds to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities order of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Purchase Price equal with respect to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right Rights then to be exercised and an amount equal to any applicable transfer tax or other governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order charge.
(b) Upon satisfaction of the Companyrequirements of Section 6(a) and subject to Section 17(k), the Rights Agent shall thereupon promptly (ii)(A) requisition from the any transfer agent of the Preferred Shares Stock (oror make available, following if the occurrence of a Section 11(a)(iiRights Agent is the transfer agent therefor) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the total number of one one-thousandths of a share of Preferred Shares (or such other securities) Stock to be purchased, purchased (and the Company hereby irrevocably authorizes such its transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof) or (B) if the Company shall have elected to deposit the shares of Preferred Stock issuable upon exercise of the Rights with a depositary agent, requisition from the depositary agent described therein depositary receipts representing interests in such number of one one-hundredths thousandths of a share of Preferred Share (or such other securities) as are Stock to be purchased (in which case certificates for the shares of Preferred Shares (or such other securities) Stock represented by such receipts shall be deposited by the transfer agent with such the depositary agent) agent and the Company hereby directs such will direct the depositary agent to comply with such request), (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash cash, if any, to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) shares in accordance with Section 14 hereof, 11 and (iii) after receipt of such certificates, certificates or depositary receipts or and cash, if any, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate (with such certificates or receipts registered in such name or names as may be designated by such holder). If the Company is obligated to deliver Common Stock or other securities or assets pursuant to this Plan, the Company will make all arrangements necessary so that such securities and assets are available for delivery by the Rights Agent, if and when appropriate.
(c) Each Person (other than the Company) in whose name any certificate for Preferred Stock is issued upon the exercise of Rights shall for all purposes be deemed to have become the holder of record of such Preferred Stock represented thereby on, and such certificate shall be dated, the date upon which the Right Certificate evidencing such Rights was duly surrendered and payment of the Purchase Price (and any transfer taxes or other governmental charges) was made; provided that if the date of such surrender and payment is a date upon which the transfer books of the Company relating to the Preferred Stock are closed, such Person shall be deemed to have become the record holder of such shares on, and such certificate shall be dated, the next succeeding Business Day on which the applicable transfer books of the Company are open. Prior to the exercise of the Rights evidenced thereby, the holder of a Right Certificate shall not be entitled to any rights of a stockholder of the Company with respect to shares for which the Rights shall be exercisable, including the right to vote, to receive dividends or other distributions or to exercise any preemptive rights, and shall not be entitled to receive any notice of any proceedings of the Company except as provided herein.
(d) In case the registered holder of any Right Certificate shall exercise less than all the Rights evidenced thereby, a new Right Certificate evidencing the number of Rights remaining unexercised shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof12.
(ie) Notwithstanding anything in this Agreement Plan to the contrary, any Rights Beneficially Owned by (i) an Acquiring Person from and after the date on which the Acquiring Person becomes such or (ii) a transferee of Rights Beneficially Owned by an Acquiring Person who (A) becomes a transferee after the Stock Acquisition Date with respect to such Acquiring Person or (B) becomes a transferee prior to or concurrently with the Stock Acquisition Date with respect to such Acquiring Person and receives such Rights (I) with actual knowledge that the transferor is or was an Acquiring Person or (II) pursuant to either (x) a transfer (whether or not for consideration) from the Acquiring Person to holders of equity interests in such Acquiring Person or to any Person with whom the Acquiring Person has any continuing agreement, arrangement or understanding regarding the transferred Rights or (y) a transfer which the Board determines in good faith is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 6(e), shall become null and void without any further action, and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under this Plan or otherwise. The Company shall use all reasonable efforts to insure that the provisions of this Section 6(e) are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or any transferee of an Acquiring Person hereunder.
(f) Notwithstanding anything in this Plan to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a any purported transfer pursuant to Section 5 or exercise pursuant to this Section 6 unless the registered holder of the applicable Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless (i) shall have completed and signed the certificate contained in the form of assignment or election to purchase purchase, as the case may be, set forth on the reverse side of the Rights Right Certificate surrendered for such exercise transfer or exercise, as the case may be, (ii) shall not have indicated an affirmative response to clause 1 or 2 thereof and (iii) shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall reasonably request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 2 contracts
Samples: Tax Benefits Preservation Plan (First Security Group Inc/Tn), Tax Benefits Preservation Plan (Steel Excel Inc.)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the The registered holder of any Right Certificate may exercise the Rights represented evidenced thereby (except as otherwise provided herein, including Sections 6(e), 6(f), 8(e), 12 and 20) in whole or in part at any time after a Distribution Date and prior to the Expiration Date upon surrender of such the Right Certificate, with the form of election to purchase, including certificate, purchase and the certificate on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money of the United States of America by certified check or bank draft payable in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event immediately available or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement next day funds to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities order of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Purchase Price equal with respect to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right Rights then to be exercised and an amount equal to any applicable tax or governmental charge required to be paid charge. The Rights Agent shall forward any such sum collected by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable it to the order Company or to such Persons as the Company shall specify by written notice.
(b) Upon satisfaction of the Companyrequirements of Section 6(a) and subject to Section 17(k), the Rights Agent shall thereupon promptly (ii)(A) requisition from the any transfer agent of the Preferred Shares Stock (oror make available, following if the occurrence of a Section 11(a)(iiRights Agent is the transfer agent therefor) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the total number of one one-millionths of a share of Preferred Shares (or such other securities) Stock to be purchased, purchased (and the Company hereby irrevocably authorizes such its transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof) or (B) if the Company shall have elected to deposit the shares of Preferred Stock issuable upon exercise of the Rights with a depositary agent, requisition from the depositary agent described therein depositary receipts representing interests in such number of one one-hundredths millionths of a share of Preferred Share (or such other securities) as are Stock to be purchased (in which case certificates for the shares of Preferred Shares (or such other securities) Stock represented by such receipts shall be deposited by the transfer agent with such the depositary agent) agent and the Company hereby directs such will direct the depositary agent to comply with such request), (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash cash, if any, to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) shares in accordance with Section 14 hereof, 11 and (iii) after receipt of such certificates, certificates or depositary receipts or cashand cash (if any), cause the same to be delivered to or upon the order of the registered holder of such Right Certificate (with such certificates or receipts registered in such name or names as may be designated by such holder). If the Company is obligated to deliver Common Stock or other securities or assets pursuant to this Rights Plan, the Company will make all arrangements necessary so that such securities and assets are available for delivery by the Rights Agent, if and when necessary to comply with this Rights Plan.
(c) Each Person (other than the Company) in whose name any certificate for Preferred Stock is issued upon the exercise of Rights shall for all purposes be deemed to have become the holder of record of such Preferred Stock represented thereby on, and such certificate shall be dated, the date upon which the Right Certificate evidencing such Rights was duly surrendered and payment of the Purchase Price (and any taxes or other charges) was made; provided that if the date of such surrender and payment is a date upon which the transfer books of the Company relating to the Preferred Stock are closed, such Person shall be deemed to have become the record holder of such shares on, and such certificate shall be dated, the next succeeding Business Day on which the Preferred Stock transfer books of the Company are open. Prior to the exercise of the Rights evidenced thereby, the holder of a Right Certificate shall not be entitled to any rights of a shareholder of the Company with respect to shares for which the Rights shall be exercisable, including the right to vote, to receive dividends or other distributions or to exercise any preemptive rights, and shall not be entitled to receive any notice of any proceedings of the Company except as provided herein.
(d) In case the registered holder of any Right Certificate shall exercise fewer than all the Rights evidenced thereby, a new Right Certificate evidencing the number of Rights remaining unexercised shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof11.
(ie) Notwithstanding anything in this Agreement Rights Plan to the contrary, any Rights Beneficially Owned by (i) an Acquiring Person from and after the date on which the Acquiring Person becomes such or (ii) a transferee of Rights Beneficially Owned by an Acquiring Person who (A) becomes a transferee after a Stock Acquisition Date of Rights owned by the relevant Acquiring Person (or Associate thereof) on the Stock Acquisition Date or (B) becomes a transferee prior to or concurrently with a Stock Acquisition Date and, in the case of this clause (B), receives such Rights (I) with actual knowledge that the transferor is or was an Acquiring Person (or an Associate of an Acquiring Person) or (II) pursuant to either (x) a transfer (whether or not for consideration) from the Acquiring Person (or an Associate thereof) to holders of equity interests in such Acquiring Person (or in such Associate thereof) or to any Person with whom the Acquiring Person (or an Associate thereof) has any continuing agreement, arrangement or understanding regarding the transferred Rights or (y) a transfer which the Board determines in good faith is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 6(e), shall become null and void without any further action, and no holder of such Rights (other than a transferee not of a type described in clause (ii)) shall have any rights whatsoever with respect to such Rights, whether under this Rights Plan or otherwise. The Company shall use all reasonable efforts to ensure that the provisions of this Section 6(e) are complied with, but neither the Company nor the Rights Agent shall have any liability to any holder of Right Certificates or other Person as a result of the Company’s failure to make any determinations with respect to an Acquiring Person or its Associate or any transferee of an Acquiring Person (or an Associate thereof) hereunder.
(f) Notwithstanding anything in this Rights Plan to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a any purported transfer pursuant to Section 5 or exercise pursuant to this Section 6 unless the registered holder of the applicable Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless (i) shall have properly completed and duly signed the certificate contained in the form of assignment or election to purchase purchase, as the case may be, set forth on the reverse side of the Rights Right Certificate surrendered for such exercise transfer or exercise, as the case may be, (ii) shall not have indicated an affirmative response to clause 1 or 2 thereof, (iii) shall be in compliance with Section 12, (iv) shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
reasonably request and (jv) Neither the Company nor the Rights Agent shall have paid a sum sufficient to cover any liability to tax or charge that may be imposed in connection with any holder transfer or exchange of Rights or any other Person Certificates as a result of the Company's failure to make any determination under this required by Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder8(e) hereof.
Appears in 2 contracts
Samples: Shareholder Rights Plan (Synovus Financial Corp), Shareholder Rights Plan (Synovus Financial Corp)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for in New York, New York, along with a signature guarantee and such purposeother and further documentation as the Rights Agent may reasonably request, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth thousandth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares Shares, other securities cash and/or other securitiesproperty in accordance with the provisions of this Agreement).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars $25 ($50.00twenty-five dollars) and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other propertyproperty in accordance with the provisions of this Agreement) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event Event, any Rights that are or were Beneficially Owned by a 2015% Stockholder or any Affiliate or Associate of a 2015% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 2015% Stockholder or an Affiliate or Associate of a 2015% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors of the Company shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable transfer tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other propertyproperty in accordance with the provisions of this Agreement), certificates for the number of Preferred Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths thousandths of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreementappropriate, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreementappropriate, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 2 contracts
Samples: Rights Agreement (Magnetek Inc), Rights Agreement (Magnetek Inc)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration DateRights Plan, the registered holder of any Right Certificate may exercise the Rights represented evidenced thereby (except as otherwise provided herein, including Sections 6(e), 6(f), 8(e), 12 and 20) in whole or in part at any time after a Distribution Date and prior to the Expiration Date upon surrender of such the Right Certificate, with the form of election to purchase, including certificate, purchase and the certificate on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for such purpose, accompanied by a signature guarantee and such other and further documentations as the Rights Agent or the Company may require, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money of the United States of America by electronic or wire transfer, or certified check or bank draft payable in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement immediately available funds to the contrary, from and after the earlier order of the date Rights Agent) of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior aggregate Purchase Price with respect to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right Rights then to be exercised and an amount equal to any applicable tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order charge.
(b) Except as otherwise provided herein, upon satisfaction of the Companyrequirements of Section 6(a) and subject to Section 17(k), the Rights Agent shall thereupon promptly (ii)(A) requisition from the any transfer agent of the Preferred Shares Stock (oror make available, following if the occurrence of a Section 11(a)(iiRights Agent is the transfer agent therefor) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the total number of one one-millionths of a share of Preferred Shares (or such other securities) Stock to be purchased, purchased (and the Company hereby irrevocably authorizes each such transfer agent to comply with all such requests) or (B) if the Company shall have elected to deposit the shares of Preferred Stock issuable upon exercise of the Rights hereunder with a depositary agent under a depositary arrangement and provides written notice of such election to the Rights Agent, and/or, as provided in Section 14 hereof, requisition request from the depositary agent described therein depositary receipts representing interests in such number of one one-hundredths millionths of a share of Preferred Share (or such other securities) as are Stock to be purchased (in which case certificates for the shares of Preferred Shares (or such other securities) Stock represented by such receipts shall be deposited by the transfer agent with such the depositary agent) agent and the Company hereby directs any such depositary agent to comply with such request), (ii) when necessary to comply with this AgreementRights Plan, requisition from the Company the amount of cash cash, if any, to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) shares in accordance with Section 14 hereof, 11; (iii) after receipt of such certificates, certificates or depositary receipts or cashand cash (if any), cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, Certificate (with such certificates or receipts registered in such name or names as may be designated by such holder holder) and (iv) when necessary to comply with this AgreementRights Plan, after receipt thereofof the cash requisitioned from the Company, deliver such cash to or upon the order of the registered holder of such Right Certificate. If the Company is obligated to deliver Common Stock or other securities or assets pursuant to this Rights Plan, the Company will make all arrangements necessary so that such securities and assets are available for delivery by the Rights Agent, if and when necessary to comply with this Rights Plan.
(gc) Notwithstanding Each Person (other than the foregoing provisions Company) in whose name any certificate for Preferred Stock is issued upon the exercise of this Section 7Rights shall for all purposes be deemed to have become the holder of record of such Preferred Stock represented thereby on, and such certificate shall be dated, the exercisability date upon which the Right Certificate evidencing such Rights was duly surrendered and payment of the Rights Purchase Price (and any taxes or other charges) was made; provided that if the date of such surrender and payment is a date upon which the transfer books of the Company relating to the Preferred Stock are closed, such Person shall be suspended for deemed to have become the record holder of such period as shares on, and such certificate shall reasonably be necessary for dated, the next succeeding Business Day on which the Preferred Stock transfer books of the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant are open. Prior to the exercise of the Rights; providedRights evidenced thereby, however, that nothing contained in this Section 7 the holder of a Right Certificate shall relieve not be entitled to any rights of a shareholder of the Company with respect to shares for which the Rights shall be exercisable, including the right to vote, to receive dividends or other distributions or to exercise any preemptive rights, and shall not be entitled to receive any notice of its obligations under Section 9(c) hereof. Upon any such suspension, proceedings of the Company shall notify the Rights Agentexcept as provided herein.
(hd) In Except as otherwise provided herein, in case the registered holder of any Right Certificate shall exercise less fewer than all of the Rights represented evidenced thereby, a new Right Certificate representing Rights equivalent to evidencing the number of Rights remaining unexercised shall be issued and delivered by the Company to the Rights Agent and countersigned and delivered if requested and provided with all necessary information by the Rights Agent to the registered holder of such Right Certificate Certificate, or to such holder's ’s duly authorized assigns, subject to the provisions of Section 14 hereof11.
(ie) Notwithstanding anything in this Agreement Rights Plan to the contrary, any Rights Beneficially Owned by (i) an Acquiring Person from and after the date on which the Acquiring Person becomes such or (ii) a transferee of Rights Beneficially Owned by an Acquiring Person who (A) becomes a transferee after a Stock Acquisition Date of Rights owned by the relevant Acquiring Person (or Associate thereof) on the Stock Acquisition Date or (B) becomes a transferee prior to or concurrently with a Stock Acquisition Date and, in the case of this clause (B), receives such Rights (I) with actual knowledge that the transferor is or was an Acquiring Person (or an Associate of an Acquiring Person) or (II) pursuant to either (x) a transfer (whether or not for consideration) from the Acquiring Person (or an Associate thereof) to holders of equity interests in such Acquiring Person (or in such Associate thereof) or to any Person with whom the Acquiring Person (or an Associate thereof) has any continuing agreement, arrangement or understanding regarding the transferred Rights or (y) a transfer which the Board determines in good faith is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 6(e), shall become null and void without any further action, and no holder of such Rights (other than a transferee not of a type described in clause (ii)) shall have any rights whatsoever with respect to such Rights, whether under this Rights Plan or otherwise. The Company shall use all reasonable efforts to ensure that the provisions of this Section 6(e) are complied with, but neither the Company nor the Rights Agent shall have any liability to any holder of Right Certificates or other Person as a result of the Company’s failure to make any determinations with respect to an Acquiring Person or its Associate or any transferee of an Acquiring Person (or an Associate thereof) hereunder.
(f) Notwithstanding anything in this Rights Plan to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights any Right Certificate or other securities upon the occurrence of any purported transfer pursuant to Section 5 or exercise as set forth in pursuant to this Section 7 6 unless such registered holder of the applicable Rights (i) shall have properly completed and duly executed the certificate contained in the form of assignment or election to purchase purchase, as the case may be, set forth on the reverse side of the Rights Right Certificate surrendered for such exercise transfer or exercise, as the case may be, (ii) shall not have indicated an affirmative response to clause 1 or 2 thereof, (iii) shall be in compliance with Section 12, (iv) shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
require and (jv) Neither the Company nor the Rights Agent shall have paid a sum sufficient to cover any liability to tax or charge that may be imposed in connection with any holder transfer or exchange of Rights or any other Person Certificates as a result of the Company's failure to make any determination under this required by Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder8(e) hereof.
Appears in 2 contracts
Samples: Tax Benefits Preservation Plan (Fidelity Southern Corp), Tax Benefits Preservation Plan (Fidelity Southern Corp)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the The registered holder of any Right Certificate may exercise the Rights represented evidenced thereby (except as otherwise provided herein, including Sections 6(e), 6(f), and 9(a)) in whole or in part at any time after the Distribution Date and prior to the Expiration Date upon surrender of such the Right Certificate, with the form of election to purchase, including certificate, purchase and the certificate on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the principal office or offices of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money of the United States of America by cash or certified check or bank draft or money order payable in accordance with Section 7(fimmediately available or next day funds to the order of the Company) hereof. The Exercise of the aggregate Purchase Price and for the total number of Preferred Shares (or, following the occurrence one one-thousandths of a Section 11(a)(ii) Event share of Preferred Stock (or a Section 13(a) Event, Common Shares, other securities, cash and/or or other propertyassets, as the case may be) as to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any which such surrendered Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing then exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable transfer tax or other governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order charge.
(b) Upon satisfaction of the Companyrequirements of Section 6(a) and subject to Section 18(k), the Rights Agent shall thereupon promptly (i) either (A) requisition from the any transfer agent of the Preferred Shares Stock (oror make available, following if the occurrence Rights Agent is the transfer agent therefor) certificates (or make a Book Entry) for the total number of one one-thousandths of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the number share of Preferred Shares (or such other securities) Stock to be purchased, purchased and the Company hereby irrevocably authorizes such its transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof) or (B) if the Company shall have elected to deposit the shares of Preferred Stock issuable upon exercise of the Rights with a depositary agent, requisition from the depositary agent described therein depositary receipts representing interests in such number of one one-hundredths thousandths of a share of Preferred Share (or such other securities) as are Stock to be purchased (in which case certificates for the shares of one one-thousandths of a share of Preferred Shares (or such other securities) Stock represented by such receipts shall be deposited by the transfer agent with such the depositary agent) agent and the Company hereby directs each such depositary agent to comply with such request), (ii) when necessary to comply with this AgreementRights Agreement or otherwise when appropriate, as determined by the Company with notice to the Rights Agent, requisition from the Company the amount of cash cash, if any, to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) shares in accordance with Section 14 hereof12, (iii) after receipt of such certificates, certificates or depositary receipts (or cash, confirmations or written notices that a Book Entry has been made) cause the same to be delivered to or upon the order of the registered holder of such Right Certificate (with such certificates or receipts registered in such name or names as may be designated by such holder), and (iv) when necessary to comply with this Rights Agreement (or otherwise when appropriate as determined by the Company with notice to the Rights Agent), after receipt thereof, deliver such cash referred to in (ii) above to or upon the order of the registered holder of such Rights Certificate. If the Company is obligated to deliver Common Stock or other securities, pay cash and/or distribute other property pursuant to this Rights Agreement, the Company will make all arrangements necessary so that such securities, cash and or/other property are available for delivery by the Rights Agent, if and when necessary to comply with this Rights Agreement.
(c) Each Person (other than the Company) in whose name any certificate (or Book Entry) for a number of one one-thousandths of a share of Preferred Stock (or Common Stock and/or other securities, as the case may be) is issued upon the exercise of Rights shall for all purposes be deemed to have become the holder of record of such one one-thousandth of a share of Preferred Stock (or Common Stock and/or other securities, as the case may be) represented thereby on, and such certificate or Book Entry shall be dated, the date upon which the Right Certificate evidencing such Rights was duly surrendered and payment of the Purchase Price (and any transfer taxes or other governmental charges) was made; provided that if the date of such surrender and payment is a date upon which the transfer books of the Company relating to the one one-thousandths of a share of Preferred Stock (or Common Stock and/or other securities, as the case may be) are closed, such Person shall be deemed to have become the record holder of such shares on, and such certificate or Book Entry shall be dated, the next succeeding Business Day on which the applicable transfer books of the Company are open. Prior to the exercise of the Rights evidenced thereby, the holder of a Right Certificate shall not be entitled to any rights of a stockholder of the Company with respect to shares for which the Rights shall be exercisable, including the right to vote, to receive dividends or other distributions or to exercise any preemptive rights, and shall not be entitled to receive any notice of any proceedings of the Company except as provided herein.
(d) In case the registered holder of any Right Certificate shall exercise less than all the Rights evidenced thereby, a new Right Certificate evidencing the number of Rights remaining unexercised shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof12.
(ie) Notwithstanding anything in this Rights Agreement to the contrary, from and after the first occurrence of a Section 9(a)(ii) Event, any Rights Beneficially Owned by (i) an Acquiring Person or an Associate or Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person (or of any such Associate or Affiliate of an Acquiring Person) who becomes a transferee after a Section 9(a)(ii) Event (a “Post-Transferee”), (iii) a transferee of an Acquiring Person (or of any such Associate or Affiliate of an Acquiring Person) who becomes a transferee prior to or concurrently with a Section 9(a)(ii) Event and receives such Rights pursuant to either (x) a transfer (whether or not for consideration) from the Acquiring Person (or any such Associate or Affiliate) to holders of equity interests in such Acquiring Person (or in any such Associate or Affiliate) or to any Person with whom the Acquiring Person (or any such Associate or Affiliate) has any continuing agreement, arrangement or understanding regarding the transferred Rights or (y) a transfer which the Board determines is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 6(e) (a “Pre-Transferee”), or (iv) any subsequent transferee receiving transferred Rights from a Post-Transferee or Pre-Transferee, either directly or through one or more intermediate transferees, shall in each of the cases (i) to (iv) above become null and void without any further action, and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under this Rights Agreement or otherwise. Neither the Company nor the Rights Agent shall have any liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its Affiliates and Associates or any transferee of any of them hereunder. The Company shall give the Rights Agent written notice of the identity of any Acquiring Person, Associate of an Acquiring Person or Affiliate of an Acquiring Person known to it, or the nominee of the foregoing, and the Rights Agent may rely on such notice in carrying out its duties under this Rights Agreement and shall be deemed not to have any knowledge of the identity of such Acquiring Person, Associate or Affiliate or the nominee of the foregoing unless and until it has received notice.
(f) Notwithstanding anything in this Rights Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a any purported transfer, split up, combination or exchange pursuant to Section 5 or exercise pursuant to this Section 6 unless the registered holder of the applicable Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless (i) shall have properly completed and duly signed the certificate (including the certification regarding the identity of the Beneficial Owner) contained in the form of assignment or election to purchase purchase, as the case may be, set forth on the reverse side of the Rights Right Certificate surrendered for such exercise transfer or exercise, as the case may be and (ii) shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) of the Rights evidenced thereby or Affiliates or Associates thereof as the Company or the Rights Agent shall reasonably request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 2 contracts
Samples: Rights Agreement (Spirit Airlines, Inc.), Rights Agreement (Williams Companies, Inc.)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the The registered holder of any Right Certificate may exercise the Rights represented evidenced thereby (except as otherwise provided herein, including Sections 5(e) and 5(f), 7(c), and 8(a)) in whole or in part at any time after the Distribution Date and prior to the Expiration Date upon surrender of such the Right Certificate, with the form of election to purchase, including certificate, purchase and the certificate on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the principal office or offices of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money of the United States of America by certified check or bank draft payable in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event immediately available or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement next day funds to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities order of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Purchase Price equal with respect to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right Rights then to be exercised and an amount equal to any applicable transfer tax or other governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order charge.
(b) Upon satisfaction of the Companyrequirements of Section 5(a) and subject to Section 17(k), the Rights Agent shall thereupon promptly (i)
(A) requisition from the any transfer agent of the Preferred Shares Stock (oror make available, following if the occurrence of a Section 11(a)(iiRights Agent is the transfer agent therefor) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the total number of one one-hundredths of a share of Preferred Shares (or such other securities) Stock to be purchased, purchased (and the Company hereby irrevocably authorizes such its transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof) or (B) if the Company shall have elected to deposit the shares of Preferred Stock issuable upon exercise of the Rights with a depositary agent, requisition from the depositary agent described therein depositary receipts representing interests in such number of one one-hundredths of a share of Preferred Share (or such other securities) as are Stock to be purchased (in which case certificates for the shares of Preferred Shares (or such other securities) Stock represented by such receipts shall be deposited by the transfer agent with such the depositary agent) agent and the Company hereby directs such will direct the depositary agent to comply with such request), (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash cash, if any, to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) shares in accordance with Section 14 hereof, 11 and (iii) after receipt of such certificates, certificates or depositary receipts or and cash, if any, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate (with such certificates or receipts registered in such name or names as may be designated by such holder). If the Company is obligated to deliver Common Stock, other securities or assets pursuant to this Agreement, the Company will make all arrangements necessary so that such securities and assets are available for delivery by the Rights Agent, if and when appropriate.
(c) Each Person (other than the Company) in whose name any certificate for Preferred Stock is issued upon the exercise of Rights shall for all purposes be deemed to have become the holder of record of such Preferred Stock represented thereby on, and such certificate shall be dated, the date upon which the Right Certificate evidencing such Rights was duly surrendered and payment of the Purchase Price (and any transfer taxes or other governmental charges) was made; provided that if the date of such surrender and payment is a date upon which the transfer books of the Company relating to the Preferred Stock are closed, such Person shall be deemed to have become the record holder of such shares on, and such certificate shall be dated, the next succeeding Business Day on which the applicable transfer books of the Company are open. Prior to the exercise of the Rights evidenced thereby, the holder of a Right Certificate shall not be entitled to any rights of a stockholder of the Company with respect to shares for which the Rights shall be exercisable, including the right to vote, to receive dividends or other distributions or to exercise any preemptive rights, and shall not be entitled to receive any notice of any proceedings of the Company except as provided herein.
(d) In case the registered holder of any Right Certificate shall exercise less than all the Rights evidenced thereby, a new Right Certificate evidencing the number of Rights remaining unexercised shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof11.
(e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 8(a)(ii) Event, any Rights beneficially owned by (i) an Acquiring Person or an Associate or Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person (or of any such Associate or Affiliate) who becomes a transferee after the Acquiring Person becomes such or (iii) a transferee of an Acquiring Person (or of any such Associate or Affiliate) who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and receives such Rights pursuant to either (A) a transfer (whether or not for consideration) from the Acquiring Person (or any such Associate or Affiliate) to holders of equity interests in such Acquiring Person (or in any such Associate or Affiliate) or to any Person with whom the Acquiring Person (or any such Associate or Affiliate) has any continuing agreement, arrangement or understanding regarding the transferred Rights or (B) a transfer which is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 5(e) shall become null and void without any further action, and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under any provision of this Agreement or otherwise. The Company shall use all reasonable efforts to insure that the provisions of this Section 5(e) are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its Affiliates and Associates or any transferee of any of them hereunder.
(f) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a any purported transfer pursuant to Section 4 or exercise pursuant to this Section 5 unless the registered holder of the applicable Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless (i) shall have completed and signed the certificate contained in the form of assignment or election to purchase purchase, as the case may be, set forth on the reverse side of the Rights Right Certificate surrendered for such exercise transfer or exercise, as the case may be, (ii) shall not have indicated an affirmative response to clause 1 or 2 thereof and (iii) shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall reasonably request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 2 contracts
Samples: Rights Agreement (Modem Media Inc), Rights Agreement (Laboratory Corp of America Holdings)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office or agency of the Rights Agent designated for in Cincinnati, Ohio, along with a signature guarantee and such purposeother and further documentation as the Rights Agent may reasonably request, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares Shares, other securities, cash and/or other securitiesproperty in accordance with the provisions of this Agreement).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars $80.00 ($50.00Eighty dollars) and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other propertyproperty in accordance with the provisions of this Agreement) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event Event, any Rights that are or were Beneficially Owned by a 20% Stockholder Shareholder or any Affiliate or Associate of a 20% Stockholder Shareholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder Shareholder or an Affiliate or Associate of a 20% StockholderShareholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors of the Company shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property property, or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable transfer tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other propertyproperty in accordance with the provisions of this Agreement), certificates for the number of Preferred Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreementappropriate, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreementappropriate, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 2 contracts
Samples: Rights Agreement (Rocky Shoes & Boots Inc), Rights Agreement (Rocky Shoes & Boots Inc)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for in Ridgefield Park, New Jersey, along with a signature guarantee and such purposeother and further documentation as the Rights Agent may reasonably request, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one onefour-hundredth thousandth (1/4000th) of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares Shares, other securities cash and/or other securitiesproperty in accordance with the provisions of this Agreement).
(c) The Exercise Price for each one four-thousandth (1/4000th) of a Preferred Share pursuant to the exercise of each Right shall initially be fifty dollars $500 ($50.00Five Hundred Dollars) and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other propertyproperty in accordance with the provisions of this Agreement) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event Event, any Rights that are or were Beneficially Owned by (i) a 2010% Stockholder or any Affiliate or Associate of a 2010% Stockholder, (ii) a transferee of a 10% Stockholder (or of any such Associate or Affiliate) who becomes a transferee after the 10% Stockholder becomes such, or (iii) a transferee of a 10% Stockholder (or of any such Associate or Affiliate) who becomes a transferee prior to or concurrently with a 10% Stockholder becoming such and receives such Rights pursuant to either (A) a transfer (whether or not for consideration) from the 10% Stockholder to holders of equity interests in such 10% Stockholder or to any Person with whom the 10% Stockholder has any continuing agreement, arrangement or understanding regarding the transferred Rights, or (B) a transfer which the Board of Directors of the Company has determined is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 7(d), at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 2010% Stockholder or an Affiliate or Associate of a 2010% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors of the Company shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable transfer tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other propertyproperty in accordance with the provisions of this Agreement), certificates for the number of one four-thousandths (1/4000th) of a Preferred Shares Share (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of oneone four-hundredths thousandths (1/4000th) of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreementappropriate, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreementappropriate, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 2 contracts
Samples: Rights Agreement (Computer Sciences Corp), Rights Agreement (Computer Sciences Corp)
Exercise of Rights. Where the Sole-funded Company exercises its exclusive option, to make the transfer of equity/assets consistent with the provisions of the Agreement and relevant laws in essence and procedure, the existing shareholders and the Domestic Company undertake to be obliged to take the following actions, individually or jointly:
(a) Until Within seven workdays upon receipt of the Distribution Datepurchase notice, no Right may be exercised.the existing shareholders and the Domestic Company shall, in accordance with the Agreement and the Purchase Notice, make and sign all necessary documents, including the equity/assets transfer contract, with respect to the purchased equity/assets transfer, and transfer the purchased equity/assets to the Sole-funded Company and/or the designee by one time;
(b) Subject The existing shareholders shall instruct the Domestic Company to Section 7(d) and (g) hereof and the other provisions of this Agreementconvene a shareholders’ meeting in a timely manner, at any time after which the Close resolution for approving the transfer of Business on the Distribution Date and prior equity/assets to the Close of Business on Sole-funded Company and/or the earlier of designee by the Redemption Date existing shareholders or the Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right Domestic Company shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).passed;
(c) The Exercise Price for With respect to the exercise of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money transfer of the United States purchased equity, if necessary, the existing shareholders and the Domestic Company shall sign the Equity Transfer Agreement (“Equity Transfer Agreement”) in the form set out in Annex III hereto. In the event of America other provisions on the content and form of the Equity Transfer Agreement in accordance with Section 7(f) hereoflaws of the PRC, laws of the PRC shall prevail. The Exercise Price closing (subject to the completion of registration of changes in industry and commerce by the industrial and commercial administrative department) of the purchased equity shall not be later than the fifteenth workday after the receipt of the Equity Purchase Notice by the existing shareholders and the number of Preferred Shares (orDomestic Company, following unless otherwise stipulated by each party as the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.case may be;
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of At the date of the first Section 11(a)(ii) Event Agreement, the existing shareholders and the Domestic Company shall also sign one or more Power of Attorney in the date content and form set forth in Annex IV hereto, to authorize any person designated by the Sole-funded Company to sign and deliver the Equity/Assets Transfer Agreement and any other documents set forth herein on behalf of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after existing shareholders and the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.Domestic Company;
(e) Prior The existing shareholders and the Domestic Company shall take all necessary actions to carry out and complete the Distribution Daterelevant approval and registration formalities without delay, if a majority to register the purchased equity/assets in the name of the Board of Directors shall have determined that such action adequately protects Sole-funded Company and/or the designee effectively without any security interests of the holders of Rightsto them. “Security interest”, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, referred in the event that Article and the Company takes Agreement, includes a warranty, guarantee, mortgage, pledge, third party right or interest, any action pursuant to this Section 7(eequity option, acquisition right, preemptive right, right of set-off, retention of title or other guarantee arrangements, but does not include any security interest arising under the Agreement and the Equity Pledge Agreement (as defined below), such action shall apply uniformly to all outstanding Rights.;
(f) Upon receipt of a Right Certificate representing exercisable Rights, with The existing shareholders and the form of election Domestic Company shall take all necessary actions to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment avoid disturbing the transfer of the Exercise Price for each Right to be exercised purchased equity/assets in essence and an amount equal to any applicable tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the number of Preferred Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereofprocedure. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contraryExcept conditions expressly set forth herein, neither the Rights Agent existing shareholders nor the Domestic Company shall be obligated to undertake impose any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth impediment or restrictive condition on the reverse side transfer of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall requestpurchased equity/assets.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 2 contracts
Samples: Exclusive Option Agreement (LightInTheBox Holding Co., Ltd.), Exclusive Option Agreement (LightInTheBox Holding Co., Ltd.)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the The registered holder of any Right Certificate may exercise the Rights represented evidenced thereby (except as otherwise provided herein, including Sections 6(e), 6(f) and 8(c)) in whole or in part at any time after a Distribution Date and prior to the Expiration Date upon surrender of such the Right Certificate, with the form of election to purchase, including certificate, purchase and the certificate on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the principal office or offices of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money of the United States of America by certified check or bank draft payable in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event immediately available or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement next day funds to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities order of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Purchase Price equal with respect to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right Rights then to be exercised and an amount equal to any applicable transfer tax or other governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order charge.
(b) Upon satisfaction of the Companyrequirements of Section 6(a) and subject to Section 18(k), the Rights Agent shall thereupon promptly (ii)(A) requisition from the any transfer agent of the Preferred Shares Stock (oror make available, following if the occurrence of a Section 11(a)(iiRights Agent is the transfer agent therefor) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the total number of one one-millionths of a share of Preferred Shares (or such other securities) Stock to be purchased, purchased (and the Company hereby irrevocably authorizes such its transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof) or (B) if the Company shall have elected to deposit the shares of Preferred Stock issuable upon exercise of the Rights with a depositary agent, requisition from the depositary agent described therein depositary receipts representing interests in such number of one one-hundredths millionths of a share of Preferred Share (or such other securities) as are Stock to be purchased (in which case certificates for the shares of Preferred Shares (or such other securities) Stock represented by such receipts shall be deposited by the transfer agent with such the depositary agent) agent and the Company hereby directs such will direct the depositary agent to comply with such request), (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash cash, if any, to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) shares in accordance with Section 14 hereof, 12 and (iii) after receipt of such certificates, certificates or depositary receipts or and cash, if any, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate (with such certificates or receipts registered in such name or names as may be designated by such holder). If the Company is obligated to deliver Common Stock or other securities or assets pursuant to this Rights Plan, the Company will make all arrangements necessary so that such securities and assets are available for delivery by the Rights Agent, if and when appropriate.
(c) Each Person (other than the Company) in whose name any certificate for Preferred Stock is issued upon the exercise of Rights shall for all purposes be deemed to have become the holder of record of such Preferred Stock represented thereby on, and such certificate shall be dated, the date upon which the Right Certificate evidencing such Rights was duly surrendered and payment of the Purchase Price (and any transfer taxes or other governmental charges) was made; provided that if the date of such surrender and payment is a date upon which the transfer books of the Company relating to the Preferred Stock are closed, such Person shall be deemed to have become the record holder of such shares on, and such certificate shall be dated, the next succeeding Business Day on which the applicable transfer books of the Company are open. Prior to the exercise of the Rights evidenced thereby, the holder of a Right Certificate shall not be entitled to any rights of a stockholder of the Company with respect to shares for which the Rights shall be exercisable, including the right to vote, to receive dividends or other distributions or to exercise any preemptive rights, and shall not be entitled to receive any notice of any proceedings of the Company except as provided herein.
(d) In case the registered holder of any Right Certificate shall exercise less than all the Rights evidenced thereby, a new Right Certificate evidencing the number of Rights remaining unexercised shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof12.
(ie) Notwithstanding anything in this Agreement Rights Plan to the contrary (except for the last two sentences of this Section 6(e)), any Rights Beneficially Owned by (i) an Acquiring Person from and after the date on which the Acquiring Person becomes such or (ii) a transferee of Rights Beneficially Owned by an Acquiring Person who (A) becomes a transferee after the Stock Acquisition Date with respect to such Acquiring Person or (B) becomes a transferee prior to or concurrently with the Stock Acquisition Date with respect to such Acquiring Person and receives such Rights (I) with actual knowledge that the transferor is or was an Acquiring Person or (II) pursuant to either (x) a transfer (whether or not for consideration) from the Acquiring Person to holders of equity interests in such Acquiring Person or to any Person with whom the Acquiring Person has any continuing agreement, arrangement or understanding regarding the transferred Rights or (y) a transfer which the Board determines in good faith is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 6(e), shall become null and void without any further action, and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under this Rights Plan or otherwise. The Company shall use all reasonable efforts to insure that the provisions of this Section 6(e) are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or any transferee of an Acquiring Person hereunder. If a Person in Specified Person Group II is an Acquiring Person, any references to “Rights Beneficially Owned” by such Acquiring Person shall exclude any Rights held by each Person in Specified Person Group I; provided that the Persons in Specified Person Group I are Grandfathered Persons or have failed to be Grandfathered Persons solely as a result of one or more In-Kind Distributions. For the avoidance of doubt, each security that is a Covered Security, share of Investor Preferred Stock, Additional Share or Warrant (each within the meaning of the Specified Exchange Agreement) shall not be subject to dilution under this Rights Plan, and the Rights related thereto shall be exercisable, so long as (A) the Persons in Specified Person Group I are Grandfathered Persons (or have failed to be Grandfathered Persons solely as a result of one or more In-Kind Distributions) and (B) a Person in Specified Person Group I has continuously since the Specified Exchange Closing Date (I) had legal title to such security (or a predecessor security that had, pursuant to its terms, been converted or exchanged into such security), (II) been the registered or record owner of such security (or a predecessor security that had, pursuant to its terms, been converted or exchanged into such security), or (III) held such security (or a predecessor security that had, pursuant to its terms, been converted or exchanged into such security) through one or more custodians, depositaries, broker-dealer firms and/or other similar intermediaries.
(f) Notwithstanding anything in this Rights Plan to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a any purported transfer pursuant to Section 5 or exercise pursuant to this Section 6 unless the registered holder of the applicable Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless (i) shall have completed and signed the certificate contained in the form of assignment or election to purchase purchase, as the case may be, set forth on the reverse side of the Rights Right Certificate surrendered for such exercise transfer or exercise, as the case may be, (ii) shall not have indicated an affirmative response to clause 1 or 2 thereof and (iii) shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall reasonably request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 2 contracts
Samples: Tax Benefits Preservation Plan (Citigroup Inc), Tax Benefits Preservation Plan (Citigroup Inc)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the The registered holder of any Right Certificate may exercise the Rights represented evidenced thereby (except as otherwise provided herein, including Sections 6(e), 6(f), and 9(a)) in whole or in part at any time after the Distribution Date and prior to the Expiration Date upon surrender of such the Right Certificate, with the form of election to purchase, including certificate, purchase and the certificate on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the principal office or offices of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money of the United States of America by cash or certified check or bank draft or money order payable in accordance with Section 7(fimmediately available or next day funds to the order of the Company) hereof. The Exercise of the aggregate Purchase Price and for the total number of Preferred Shares (or, following the occurrence one one-thousandths of a Section 11(a)(ii) Event share of Preferred Stock (or a Section 13(a) Event, Common Shares, other securities, cash and/or or other propertyassets, as the case may be) as to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any which such surrendered Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing then exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable transfer tax or other governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order charge.
(b) Upon satisfaction of the Companyrequirements of Section 6(a) and subject to Section 18(k), the Rights Agent shall thereupon promptly (i) either (A) requisition from the any transfer agent of the Preferred Shares Stock (oror make available, following if the occurrence Rights Agent is the transfer agent therefor) certificates (or make a Book Entry) for the total number of one one-thousandths of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the number share of Preferred Shares (or such other securities) Stock to be purchased, purchased and the Company hereby irrevocably authorizes such its transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof) or (B) if the Company shall have elected to deposit the shares of Preferred Stock issuable upon exercise of the Rights with a depositary agent, requisition from the depositary agent described therein depositary receipts representing interests in such number of one one-hundredths thousandths of a share of Preferred Share (or such other securities) as are Stock to be purchased (in which case certificates for the shares of one one-thousandths of a share of Preferred Shares (or such other securities) Stock represented by such receipts shall be deposited by the transfer agent with such the depositary agent) agent and the Company hereby directs each such depositary agent to comply with such request), (ii) when necessary to comply with this AgreementRights Agreement or otherwise when appropriate, as determined by the Company with notice to the Rights Agent, requisition from the Company the amount of cash cash, if any, to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) shares in accordance with Section 14 hereof12, (iii) after receipt of such certificates, certificates or depositary receipts (or cash, confirmations or written notices that a Book Entry has been made) cause the same to be delivered to or upon the order of the registered holder of such Right Certificate (with such certificates or receipts registered in such name or names as may be designated by such holder), and (iv) when necessary to comply with this Rights Agreement (or otherwise when appropriate as determined by the Company with notice to the Rights Agent), after receipt thereof, deliver such cash referred to in (ii) above to or upon the order of the registered holder of such Rights Certificate. If the Company is obligated to deliver Common Stock or other securities, pay cash and/or distribute other property pursuant to this Rights Agreement, the Company will make all arrangements necessary so that such securities, cash and or/other property are available for delivery by the Rights Agent, if and when necessary to comply with this Rights Agreement.
(c) Each Person (other than the Company) in whose name any certificate (or Book Entry) for a number of one one-thousandths of a share of Preferred Stock (or Common Stock and/or other securities, as the case may be) is issued upon the exercise of Rights shall for all purposes be deemed to have become the holder of record of such one one-thousandths of a share of Preferred Stock (or Common Stock and/or other securities, as the case may be) represented thereby on, and such certificate or Book Entry shall be dated, the date upon which the Right Certificate evidencing such Rights was duly surrendered and payment of the Purchase Price (and any transfer taxes or other governmental charges) was made; provided that if the date of such surrender and payment is a date upon which the transfer books of the Company relating to the one one-thousandths of a share of Preferred Stock (or Common Stock and/or other securities, as the case may be) are closed, such Person shall be deemed to have become the record holder of such shares on, and such certificate or Book Entry shall be dated, the next succeeding Business Day on which the applicable transfer books of the Company are open. Prior to the exercise of the Rights evidenced thereby, the holder of a Right Certificate shall not be entitled to any rights of a stockholder of the Company with respect to shares for which the Rights shall be exercisable, including the right to vote, to receive dividends or other distributions or to exercise any preemptive rights, and shall not be entitled to receive any notice of any proceedings of the Company except as provided herein.
(d) In case the registered holder of any Right Certificate shall exercise less than all the Rights evidenced thereby, a new Right Certificate evidencing the number of Rights remaining unexercised shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof12.
(ie) Notwithstanding anything in this Rights Agreement to the contrary, from and after the first occurrence of a Section 9(a)(ii) Event, any Rights Beneficially Owned by (i) an Acquiring Person or an Associate or Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person (or of any such Associate or Affiliate of an Acquiring Person) who becomes a transferee after a Section 9(a)(ii) Event (a “Post-Transferee”), (iii) a transferee of an Acquiring Person (or of any such Associate or Affiliate of an Acquiring Person) who becomes a transferee prior to or concurrently with a Section 9(a)(ii) Event and receives such Rights pursuant to either (x) a transfer (whether or not for consideration) from the Acquiring Person (or any such Associate or Affiliate) to holders of equity interests in such Acquiring Person (or in any such Associate or Affiliate) or to any Person with whom the Acquiring Person (or any such Associate or Affiliate) has any continuing agreement, arrangement or understanding regarding the transferred Rights or (y) a transfer which the Board determines is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 6(e) (a “Pre-Transferee”), or (iv) any subsequent transferee receiving transferred Rights from a Post-Transferee or Pre-Transferee, either directly or through one or more intermediate transferees, shall in each of the cases (i) to (iv) above become null and void without any further action, and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under this Rights Agreement or otherwise. Neither the Company nor the Rights Agent shall have any liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its Affiliates and Associates or any transferee of any of them hereunder. The Company shall give the Rights Agent written notice of the identity of any Acquiring Person, Associate of an Acquiring Person or Affiliate of an Acquiring Person known to it, or the nominee of the foregoing, and the Rights Agent may rely on such notice in carrying out its duties under this Rights Agreement and shall be deemed not to have any knowledge of the identity of such Acquiring Person, Associate or Affiliate or the nominee of the foregoing unless and until it has received notice.
(f) Notwithstanding anything in this Rights Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a any purported transfer, split up, combination or exchange pursuant to Section 5 or exercise pursuant to this Section 6 unless the registered holder of the applicable Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless (i) shall have properly completed and duly signed the certificate (including the certification regarding the identity of the Beneficial Owner) contained in the form of assignment or election to purchase purchase, as the case may be, set forth on the reverse side of the Rights Right Certificate surrendered for such exercise transfer or exercise, as the case may be and (ii) shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) of the Rights evidenced thereby or Affiliates or Associates thereof as the Company or the Rights Agent shall reasonably request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 2 contracts
Samples: Rights Agreement (Tribune Publishing Co), Rights Agreement (Tribune Publishing Co)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the The registered holder of any Right Certificate may exercise the Rights represented evidenced thereby (except as otherwise provided herein, including Sections 6(e), 6(f) and 8(c)) in whole or in part at any time after a Distribution Date and prior to the Expiration Date upon surrender of such the Right Certificate, with the form of election to purchase, including certificate, purchase and the certificate on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the principal office or offices of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money of the United States of America by certified check or bank draft payable in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event immediately available or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement next day funds to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities order of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Purchase Price equal with respect to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right Rights then to be exercised and an amount equal to any applicable transfer tax or other governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order charge.
(b) Upon satisfaction of the Companyrequirements of Section 6(a) and subject to Section 17(k), the Rights Agent shall thereupon promptly (ii)(A) requisition from the any transfer agent of the Preferred Shares Stock (oror make available, following if the occurrence of a Section 11(a)(iiRights Agent is the transfer agent therefor) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the total number of one one-millionths of a share of Preferred Shares (or such other securities) Stock to be purchased, purchased (and the Company hereby irrevocably authorizes such its transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof) or (B) if the Company shall have elected to deposit the shares of Preferred Stock issuable upon exercise of the Rights with a depositary agent, requisition from the depositary agent described therein depositary receipts representing interests in such number of one one-hundredths millionths of a share of Preferred Share (or such other securities) as are Stock to be purchased (in which case certificates for the shares of Preferred Shares (or such other securities) Stock represented by such receipts shall be deposited by the transfer agent with such the depositary agent) agent and the Company hereby directs such will direct the depositary agent to comply with such request), (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash cash, if any, to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) shares in accordance with Section 14 hereof, 11 and (iii) after receipt of such certificates, certificates or depositary receipts or and cash, if any, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate (with such certificates or receipts registered in such name or names as may be designated by such holder). If the Company is obligated to deliver Common Stock or other securities or assets pursuant to this Plan, the Company will make all arrangements necessary so that such securities and assets are available for delivery by the Rights Agent, if and when appropriate.
(c) Each Person (other than the Company) in whose name any certificate for Preferred Stock is issued upon the exercise of Rights shall for all purposes be deemed to have become the holder of record of such Preferred Stock represented thereby on, and such certificate shall be dated, the date upon which the Right Certificate evidencing such Rights was duly surrendered and payment of the Purchase Price (and any transfer taxes or other governmental charges) was made; provided that if the date of such surrender and payment is a date upon which the transfer books of the Company relating to the Preferred Stock are closed, such Person shall be deemed to have become the record holder of such shares on, and such certificate shall be dated, the next succeeding Business Day on which the applicable transfer books of the Company are open. Prior to the exercise of the Rights evidenced thereby, the holder of a Right Certificate shall not be entitled to any rights of a stockholder of the Company with respect to shares for which the Rights shall be exercisable, including the right to vote, to receive dividends or other distributions or to exercise any preemptive rights, and shall not be entitled to receive any notice of any proceedings of the Company except as provided herein.
(d) In case the registered holder of any Right Certificate shall exercise less than all the Rights evidenced thereby, a new Right Certificate evidencing the number of Rights remaining unexercised shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof12.
(ie) Notwithstanding anything in this Agreement Plan to the contrary, any Rights Beneficially Owned by (i) an Acquiring Person from and after the date on which the Acquiring Person becomes such or (ii) a transferee of Rights Beneficially Owned by an Acquiring Person who (A) becomes a transferee after the Stock Acquisition Date with respect to such Acquiring Person or (B) becomes a transferee prior to or concurrently with the Stock Acquisition Date with respect to such Acquiring Person and receives such Rights (I) with actual knowledge that the transferor is or was an Acquiring Person or (II) pursuant to either (x) a transfer (whether or not for consideration) from the Acquiring Person to holders of equity interests in such Acquiring Person or to any Person with whom the Acquiring Person has any continuing agreement, arrangement or understanding regarding the transferred Rights or (y) a transfer which the Board determines in good faith is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 6(e), shall become null and void without any further action, and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under this Plan or otherwise. The Company shall use all reasonable efforts to insure that the provisions of this Section 6(e) are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or any transferee of an Acquiring Person hereunder.
(f) Notwithstanding anything in this Plan to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a any purported transfer pursuant to Section 5 or exercise pursuant to this Section 6 unless the registered holder of the applicable Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless (i) shall have completed and signed the certificate contained in the form of assignment or election to purchase purchase, as the case may be, set forth on the reverse side of the Rights Right Certificate surrendered for such exercise transfer or exercise, as the case may be, (ii) shall not have indicated an affirmative response to clause 1 or 2 thereof and (iii) shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall reasonably request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 2 contracts
Samples: Tax Benefits Preservation Plan (Pmi Group Inc), Tax Benefits Preservation Plan (Pmi Group Inc)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of ----------- - this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Rights Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for such purposeat The Bank of New York, 000 Xxxxxxx Xxxxxx, 22nd Floor, Equity Tender and Exchange, New York, New York, 10286, Attention: Xxxxx XxXxxxxxx, Assistant Treasurer, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-one- hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The "Exercise Price Price" for the exercise of each Right shall initially -------------- be fifty dollars ($50.00) 10.00 and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of ----------- Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, Shares and/or other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.. ------------ -- --
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of (i) the date of the first Section 11(a)(ii) Event or and (ii) the date of the first Section 13(a) Event Event, any Rights that are or were Beneficially Owned by a 20% Stockholder an Acquiring Person or any Affiliate or Associate of a 20% Stockholder an Acquiring Person at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder an Acquiring Person or an Affiliate or Associate of a 20% Stockholderan Acquiring Person) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors of the Company shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) Date and upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.the
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or --------- cashier's check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other Shares and/or securities, cash and/or other property), ) certificates for the number of Preferred Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the ---------- depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such other securities) securities as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) securities represented by such receipts shall be deposited by the transfer agent with such depositary agent) ), and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) securities in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary ---------- receipts or cash, cause the same to be delivered to or upon the order of the registered holder holder, of such Right Certificate, registered in such name or names as may be designated by such holder holder, and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the --------- exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register and qualify the Preferred Shares and/or Common Shares or other securities to be issued pursuant to the exercise of the Rights under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rightsjurisdiction; provided, however, that nothing contained in this -------- ------- Section 7 shall relieve the Company of its obligations under Section 9(c) --------- ----------- hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.. ----------
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 7, unless the certificate --------- contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an and the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder --------- an Acquiring Person or an Affiliate or Associate of a 20% stockholder or transferees hereunderan Acquiring Person.
Appears in 1 contract
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for in New York, New York, along with a signature guarantee and such purposeother and further documentation as the Rights Agent may reasonably request, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth thousandth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares Shares, other securities cash and/or other securitiesproperty in accordance with the provisions of this Agreement).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars $60 ($50.00sixty dollars) and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other propertyproperty in accordance with the provisions of this Agreement) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event Event, any Rights that are or were Beneficially Owned by a 2015% Stockholder or any Affiliate or Associate of a 2015% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 2015% Stockholder or an Affiliate or Associate of a 2015% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors of the Company shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable transfer tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other propertyproperty in accordance with the provisions of this Agreement), certificates for the number of Preferred Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths one- thousandths of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreementappropriate, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreementappropriate, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; providedPROVIDED, howeverHOWEVER, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Samples: Rights Agreement (Magnetek Inc)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) 11.1.2 and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Dateexcept as otherwise provided herein, the registered holder of any Right Certificate may exercise the Rights represented evidenced thereby in whole or in part at any time after the Distribution Date upon surrender of such the Right Certificate, with the form of election to purchase, including certificate, purchase and certification on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the Exercise aggregate Purchase Price for each Right exercised. Upon the exercise total number of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth thousandths of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number share of Preferred Shares Stock (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or or other propertyassets, as the case may be) as to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and which the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable tax or governmental charge required to be paid under Section 9 hereof, at any time prior to the time (the “Expiration Date”) that is the earliest of (i) immediately prior to the Effective Time (as defined in the Merger Agreement) (the “Final Expiration Date”), (ii) the time at which the Rights are redeemed as provided in Section 23 (the “Redemption Date”), (iii) the closing of any merger or other acquisition transaction involving the Company pursuant to an agreement of the type described in Section 13.3 at which time the Rights are deemed terminated, (iv) the time at which the Rights are exchanged as provided in Section 27, (v) the time at which the Board determines that the NOLs are utilized in all material respects or no longer available in any material respect under Section 382 of the Code or that an ownership change under Section 382 of the Code would not adversely impact in any material respect the time period in which the Company could use the NOLs, or materially impair the amount of the NOLs that could be used by the holder of such Right Certificate Company in accordance with Section 9 hereof any particular time period, for applicable tax purposes, or (vi) a determination by certified check or cashier's check payable the Board, prior to the order time any Person becomes an Acquiring Person, that the Plan and the Rights are no longer in the best interests of the CompanyCompany and its stockholders. The Company shall promptly notify the Rights Agent in writing upon the occurrence of the Expiration Date and, if such notification is given orally, the Company shall confirm same in writing on or prior to the Business Day next following. Until such notice is received by the Rights Agent, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (ormay presume conclusively for all purposes, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the number of Preferred Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant prior to the exercise of the Rights; provided, howeverFinal Expiration Date, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights AgentExpiration Date has not occurred.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Samples: Tax Benefit Preservation Plan (Leap Wireless International Inc)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Rights Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for such purposeat The Bank of New York, 100 Xxxxxxx Xxxxxx, 11 East, New York, NY 10286, Attention: Stock Transfer Division, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The “Exercise Price Price” for the exercise of each Right shall initially be fifty dollars ($50.00) 100.00 and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, Shares and/or other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event Event, any Rights that are or were Beneficially Owned by a 2030% Stockholder or any Affiliate or Associate of a 2030% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 2030% Stockholder or an Affiliate or Associate of a 2030% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors of the Company shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, Price (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable transfer tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's ’s check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other Shares and/or securities, cash and/or other property), ) certificates for the number of Preferred Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreementappropriate, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreementappropriate, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register and qualify under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares and/or Common Shares or other securities to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's ’s duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Exercise of Rights. No delay or omission by Landlord in the exercise of any right or remedy shall operate as a waiver thereof, and no final or partial exercise by Landlord of any right or remedy shall preclude other or further exercises thereof or the exercise of any other right or remedy. Guarantor hereby expressly waives: (a) Until any and all notices of the Distribution Date, no Right may be exercised.
acceptance of this Guaranty; (b) Subject to Section 7(d) any and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier all notices of the Redemption Date existence, creation, modification, amendment, alteration, change, extension, or renewal of the Expiration DateLease, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right CertificateLiabilities, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights part thereof (whether or not such holder notice is required to be given to Tenant under the terms and conditions of the Lease); (c) presentment, demand, notice of dishonor, protest, and any and all other notices whatsoever (except for any notices required under the Lease and the requirement of Landlord to make a 20% Stockholder written demand on Guarantor); (d) any and all benefit of valuation, appraisement, or an Affiliate other exemption laws or Associate rights thereof (whether now or hereafter in force or effect) in the jurisdiction of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
the court in which Landlord enforces this Guaranty; (e) Prior to the Distribution Date, if a majority invalidity or unenforceability of the Board of Directors shall have determined that such action adequately protects the interests of the holders of RightsLiabilities, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable part thereof; (after the Close of Business on the Distribution Datef) upon the exercise of each Right any and payment of the Exercise Priceall diligence in enforcement, collection, perfection, or protection of, or realization upon: (i) cash, the Liabilities or any part thereof; (ii) other equity securities any of the Company, liabilities and obligations of Guarantor hereunder; (iii) debt securities any of the Company, liabilities or obligations of any Other Obligor; or (iv) other property or any of the Security; (vg) any combination and all rights of subrogation for, or with respect to, any of the foregoingliabilities and obligations of Guarantor hereunder, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price until all of the Preferred Shares for which substitution is made. Subject Liabilities have been satisfied in full; and (h) the right to Section 7(d) hereof, in assert the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment invalidity or unenforceability of the Exercise Price for each Right to be exercised and an amount equal to any applicable tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order of the Company, the Rights Agent shall thereupon promptly Lease due to: (i) requisition from the transfer agent of the Preferred Shares (orreorganization, following the occurrence of a Section 11(a)(ii) Event arrangement, bankruptcy, or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the number of Preferred Shares (insolvency; or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary any reason other than reorganization, arrangement, bankruptcy, or insolvency, except to comply with this Agreement, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or extent that such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to reasons could be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated asserted successfully by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right CertificateTenant.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Samples: Lease (Brightpoint Inc)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the The registered holder of any Right Certificate may exercise the Rights represented evidenced thereby (except as otherwise provided herein, including Sections 5(e), 5(f), 7(c) and 8(a)) in whole or in part at any time after the Distribution Date and prior to the Expiration Date upon surrender of such the Right Certificate, with the form of election to purchase, including certificate, purchase and the certificate on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the principal office or offices of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money of the United States of America by certified check or bank draft payable in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event immediately available or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement next day funds to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities order of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Purchase Price equal with respect to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right Rights then to be exercised and an amount equal to any applicable transfer tax or other governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order charge.
(b) Upon satisfaction of the Companyrequirements of Section 5(a) and subject to Section 17(k), the Rights Agent shall thereupon promptly (i) (A) requisition from the any transfer agent of the Preferred Shares Stock (oror make available, following if the occurrence of a Section 11(a)(iiRights Agent is the transfer agent therefor) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the total number of one one-thousandths of a share of Preferred Shares (or such other securities) Stock to be purchased, purchased (and the Company hereby irrevocably authorizes such its transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof) or (B) if the Company shall have elected to deposit the shares of Preferred Stock issuable upon exercise of the Rights with a depositary agent, requisition from the depositary agent described therein depositary receipts representing interests in such number of one one-hundredths thousandths of a share of Preferred Share (or such other securities) as are Stock to be purchased (in which case certificates for the shares of Preferred Shares (or such other securities) Stock represented by such receipts shall be deposited by the transfer agent with such the depositary agent) agent and the Company hereby directs such will direct the depositary agent to comply with such request), (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash cash, if any, to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) shares in accordance with Section 14 hereof, 11 and (iii) after receipt of such certificates, certificates or depositary receipts or and cash, if any, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate (with such certificates or receipts registered in such name or names as may be designated by such holder). If the Company is obligated to deliver Common Stock or other securities or assets pursuant to this Agreement, the Company will make all arrangements necessary so that such securities and assets are available for delivery by the Rights Agent, if and when appropriate.
(c) Each Person (other than the Company) in whose name any certificate for Preferred Stock is issued upon the exercise of Rights shall for all purposes be deemed to have become the holder of record of such Preferred Stock represented thereby on, and such certificate shall be dated, the date upon which the Right Certificate evidencing such Rights was duly surrendered and payment of the Purchase Price (and any transfer taxes or other governmental charges) was made; provided that if the date of such surrender and payment is a date upon which the transfer books of the Company relating to the Preferred Stock are closed, such Person shall be deemed to have become the record holder of such shares on, and such certificate shall be dated, the next succeeding Business Day on which the applicable transfer books of the Company are open. Prior to the exercise of the Rights evidenced thereby, the holder of a Right Certificate shall not be entitled to any rights of a stockholder of the Company with respect to shares for which the Rights shall be exercisable, including the right to vote, to receive dividends or other distributions or to exercise any preemptive rights, and shall not be entitled to receive any notice of any proceedings of the Company except as provided herein.
(d) In case the registered holder of any Right Certificate shall exercise less than all the Rights evidenced thereby, a new Right Certificate evidencing the number of Rights remaining unexercised shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof11.
(e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 8(a)(ii) Event, any Rights Beneficially Owned by (i) an Acquiring Person or an Associate or Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person (or of any such Associate or Affiliate of an Acquiring Person) who (A) becomes a transferee after a Section 8(a)(ii) Event, (B) becomes a transferee prior to or concurrently with a Section 8(a)(ii) Event and receives such Rights pursuant to either (1) a transfer (whether or not for consideration) from the Acquiring Person (or any such Associate or Affiliate) to holders of equity interests in such Acquiring Person (or in any such Associate or Affiliate) or to any Person with whom the Acquiring Person (or any such Associate or Affiliate) has any continuing agreement, arrangement or understanding regarding the transferred Rights or (2) a transfer which the Board determines in good faith is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 5(e), shall become null and void without any further action, and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under this Agreement or otherwise. The Company shall use all reasonable efforts to insure that the provisions of this Section 5(e) are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its Affiliates and Associates or any transferee of any of them hereunder.
(f) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a any purported transfer pursuant to Section 4 or exercise pursuant to this Section 5 unless the registered holder of the applicable Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless (i) shall have completed and signed the certificate contained in the form of assignment or election to purchase purchase, as the case may be, set forth on the reverse side of the Rights Right Certificate surrendered for such exercise transfer or exercise, as the case may be, (ii) shall not have indicated an affirmative response to clause 1 or 2 thereof and (iii) shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall reasonably request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g7(g) hereof and the other provisions of this AgreementAgreement including Section 23(a), at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for such purposein Boston, Massachusetts or the office of the Rights Agent's service agent in Canton, Massachusetts, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities)Share.
(c) The Exercise Price exercise price for the exercise of each Right (the "Exercise Price") shall initially be fifty dollars ($50.00) 80 and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, Stock and/or other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier first occurrence of the date of the first a Section 11(a)(ii) Event or the date of the first a Section 13(a) Event Event, any Rights that are or were Beneficially Owned by a 2015% Stockholder or any Affiliate or Associate of a 2015% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 2015% Stockholder or an Affiliate or Associate of a 2015% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Distribution Date, if a majority of Rights remaining unexercised shall be issued by the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal Rights Agent to the aggregate Current Market Price registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the Preferred Shares for which substitution is made. Subject to provisions of Section 7(d) 14 hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable transfer tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof in cash, or by certified check or cashier's check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (oror make available, following if the occurrence of a Section 11(a)(iiRights Agent is the transfer agent) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the number of Preferred Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreementappropriate, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder holder, and (iv) when necessary to comply with this Agreementappropriate, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; providedPROVIDED, howeverHOWEVER, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Exercise of Rights. (a) Until the Distribution Date, no Right may 6.1 Unless and until a Event of Default shall have occurred and be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Datecontinuing, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right Pledgor shall be entitled to receivereceive and retain all dividends and other distributions made on or in respect of the Pledged Property and to exercise all voting rights attaching to the Existing Securities or any thereof for all purposes.
6.2 If a Event of Default shall have occurred and be continuing the Pledgee shall, subject without prejudice to adjustment any other right or remedy available hereunder or under applicable law, forthwith become entitled:
6.2.1 upon notice to the Pledgor and the Borrower, solely and exclusively to all the voting rights attaching to the Pledged Property or any thereof and the Pledgor shall exercise such rights in such manner as the Pledgee may in its commercially reasonable discretion determine; and/or
6.2.2 to receive and, pursuant to Section 6.03 of the Credit Agreement, apply all dividends and other distributions made on or in respect of the Pledged Property or any part thereof and any such dividends and other distributions received by the Pledgor after such time shall be held in trust by the Pledgor for the Pledgee and be paid or transferred to the Pledgee on demand; and/or
6.2.3 upon at least ten (10) Business Days' notice to, but without consent or concurrence by, the Pledgor to sell the Pledged Property or any part thereof by such method, at such place and upon such terms as the Pledgee may determine in accordance with applicable law, with power to postpone any such sale and in any such case the Pledgee may exercise any and all rights attaching to the Pledged Property as the Pledgee in its commercially reasonable discretion may determine and without being answerable for any loss occasioned by such sale or resulting from postponement thereof or the exercise of such rights; upon any sale of the Pledged Property or any part thereof the purchaser thereof shall not be bound to see or enquire whether the power of sale of the Pledgee has arisen in the manner herein provided hereinand the sale shall be deemed to be within the power of the Pledgee and the receipt of the Pledgee for the purchase money shall effectively discharge the purchaser of the Pledged Property, one one-hundredth of a Preferred Share (oror any part thereof, following who shall not be concerned or be in any way answerable therefor.
6.3 Following the occurrence of a Section 11(a)(ii) an Event or a Section 13(a) Eventof Default which is continuing and if the Pledgee so requests, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right Pledgor shall initially be fifty dollars ($50.00) and shall be payable in lawful money procure that the Borrower forthwith enter the relevant details of the United States of America Pledgee or its nominee as shareholder in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier respect of the date Pledged Property in the register of members of the first Section 11(a)(ii) Event or the date Borrower upon presentation of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed executed share transfer form and duly executed, with signature guaranteed, accompanied by payment satisfaction of the Exercise Price for each Right to be exercised and an amount equal to any applicable tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the number of Preferred Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificatelegal requirements.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the The registered holder of any Right Certificate may exercise the Rights represented evidenced thereby (except as otherwise provided herein), including Sections 6(e), 6(f), 8(c) and 9
(a) in whole or in part at any time after the Distribution Date and prior to the Expiration Date upon surrender of such the Right Certificate, with the form of election to purchase, including certificate, purchase and the certificate on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the principal office or offices of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money of the United States of America by cash or certified check or bank draft or money order payable in accordance with Section 7(fimmediately available or next day funds to the order of the Company) hereof. The Exercise of the aggregate Purchase Price and for the total number of Preferred Shares (or, following the occurrence one one-hundredths of a Section 11(a)(ii) Event share of Preferred Stock (or a Section 13(a) Event, Common Shares, other securities, cash and/or or other propertyassets, as the case may be) as to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any which such surrendered Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing then exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable transfer tax or other governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order charge.
(b) Upon satisfaction of the Companyrequirements of Section 6(a) and subject to Section 18(k), the Rights Agent shall thereupon promptly (i) either (A) requisition from the any transfer agent of the Preferred Shares Stock (oror make available, following if the occurrence Rights Agent is the transfer agent therefor) certificates (or make a Book Entry) for the total number of one one-hundredths of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the number share of Preferred Shares (or such other securities) Stock to be purchased, purchased and the Company hereby irrevocably authorizes such its transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof) or (B) if the Company shall have elected to deposit the shares of Preferred Stock issuable upon exercise of the Rights with a depositary agent, requisition from the depositary agent described therein depositary receipts representing interests in such number of one one-hundredths of a share of Preferred Share (or such other securities) as are Stock to be purchased (in which case certificates for the shares of one one-hundredths of a share of Preferred Shares (or such other securities) Stock represented by such receipts shall be deposited by the transfer agent with such the depositary agent) agent and the Company hereby directs each such depositary agent to comply with such request), (ii) when necessary to comply with this AgreementRights Agreement or otherwise when appropriate, as determined by the Company with notice to the Rights Agent, requisition from the Company the amount of cash cash, if any, to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) shares in accordance with Section 14 hereof12, (iii) after receipt of such certificates, certificates or depositary receipts (or cash, confirmations or written notices that a Book Entry has been made) cause the same to be delivered to or upon the order of the registered holder of such Right Certificate (with such certificates or receipts registered in such name or names as may be designated by such holder), and (iv) when necessary to comply with the Rights Agreement (or otherwise when appropriate as determined by the Company with notice to the Rights Agent), after receipt thereof, deliver such cash referred to in (ii) above to or upon the order of the registered holder of such Rights Certificate. If the Company is obligated to deliver Common Stock or other securities, pay cash and/or distribute other property pursuant to this Rights Agreement, the Company will make all arrangements necessary so that such securities, cash and or/other property are available for delivery by the Rights Agent, if and when necessary to comply with this Agreement.
(c) Each Person (other than the Company) in whose name any certificate (or Book Entry) for a number of one one-hundredths of a share of Preferred Stock (or Common Stock and/or other securities, as the case may be) is issued upon the exercise of Rights shall for all purposes be deemed to have become the holder of record of such one one-hundredth of a share of Preferred Stock (or Common Stock and/or other securities, as the case may be) represented thereby on, and such certificate or Book Entry shall be dated, the date upon which the Right Certificate evidencing such Rights was duly surrendered and payment of the Purchase Price (and any transfer taxes or other governmental charges) was made; provided that if the date of such surrender and payment is a date upon which the transfer books of the Company relating to the one one-hundredths of a share of Preferred Stock (or Common Stock and/or other securities, as the case may be) are closed, such Person shall be deemed to have become the record holder of such shares on, and such certificate or Book Entry shall be dated, the next succeeding Business Day on which the applicable transfer books of the Company are open. Prior to the exercise of the Rights evidenced thereby, the holder of a Right Certificate shall not be entitled to any rights of a stockholder of the Company with respect to shares for which the Rights shall be exercisable, including the right to vote, to receive dividends or other distributions or to exercise any preemptive rights, and shall not be entitled to receive any notice of any proceedings of the Company except as provided herein.
(d) In case the registered holder of any Right Certificate shall exercise less than all the Rights evidenced thereby, a new Right Certificate evidencing the number of Rights remaining unexercised shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof12.
(ie) Notwithstanding anything in this Rights Agreement to the contrary, from and after the first occurrence of a Section 9(a)(ii) Event, any Rights Beneficially Owned by (i) an Acquiring Person or an Associate or Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person (or of any such Associate or Affiliate of an Acquiring Person) who becomes a transferee after a Section 9(a)(ii) Event (a “Post-Transferee”), (iii) a transferee of an Acquiring Person (or of any such Associate or Affiliate) who becomes a transferee prior to or concurrently with a Section 9(a)(ii) Event and receives such Rights pursuant to either (x) a transfer (whether or not for consideration) from the Acquiring Person (or any such Associate or Affiliate) to holders of equity interests in such Acquiring Person (or in any such Associate or Affiliate) or to any Person with whom the Acquiring Person (or any such Associate or Affiliate) has any continuing agreement, arrangement or understanding regarding the transferred Rights or (y) a transfer which the Board determines in good faith is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 6(e) (a “Pre-Transferee”), or (iv) any subsequent transferee receiving transferred Rights from a Post-Transferee or Pre-Transferee, either directly or through one or more intermediate transferees, shall in each of the cases (i) to (iv) above become null and void without any further action, and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under this Rights Agreement or otherwise. Neither the Company nor the Rights Agent shall have any liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its Affiliates and Associates or any transferee of any of them hereunder. The Company shall give the Rights Agent written notice of the identity of any Acquiring Person, Associate or Affiliate known to it, or the nominee of the foregoing, and the Rights Agent may rely on such notice in carrying out its duties under this Agreement and shall be deemed not to have any knowledge of the identity of such Acquiring Person, Associate or Affiliate or the nominee of the foregoing unless and until it has received notice.
(f) Notwithstanding anything in this Rights Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a any purported transfer, split up, combination or exchange pursuant to Section 5 or exercise pursuant to this Section 6 unless the registered holder of the applicable Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless (i) shall have properly completed and duly signed the certificate (including the certification regarding the identity of the Beneficial Owner) contained in the form of assignment or election to purchase purchase, as the case may be, set forth on the reverse side of the Rights Right Certificate surrendered for such exercise transfer or exercise, as the case may be and (ii) shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) of the Rights evidenced thereby or Affiliates or Associates thereof as the Company or the Rights Agent shall reasonably request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office or agency of the Rights Agent designated for in Jersey City, New Jersey, along with a signature guarantee and such purposeother and further documentation as the Rights Agent may reasonably request, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares Shares, other securities, cash and/or other securitiesproperty in accordance with the provisions of this Agreement).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars $115 ($50.00One Hundred Fifteen Dollars) and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other propertyproperty in accordance with the provisions of this Agreement) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event Event, any Rights that are or were Beneficially Owned by a 2015% Stockholder or any Affiliate or Associate of a 2015% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 2015% Stockholder or an Affiliate or Associate of a 2015% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors of the Company shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable transfer tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other propertyproperty in accordance with the provisions of this Agreement), certificates for the number of Preferred Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreementappropriate, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreementappropriate, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Samples: Rights Agreement (Too Inc)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Rights Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for such purposeat First Chicago Trust Company of New York, Mail Suite 4660, 525 Washington Boulevard, Jersey City, New Jersey 07310-252532, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) 175.00 and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, Shares and/or other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event Event, any Rights that are or were Beneficially Owned by a 2015% Stockholder or any Affiliate or Associate of a 2015% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 2015% Stockholder or an Affiliate or Associate of a 2015% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors of the Company shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable transfer tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other Shares and/or securities, cash and/or other property), certificates for the number of Preferred Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreementappropriate, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreementappropriate, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register and qualify under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section Sections 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for such purposeat 00 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) 33.33 and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(iill(a)(ii) Event or a Section 13(a) Event, Common Shares, Shares and/or other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event Event, any Rights that are or were Beneficially Owned by a 2015% Stockholder or any Affiliate or Associate of a 2015% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 2015% Stockholder or an Affiliate or Associate of a 2015% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable transfer tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other Shares and/or securities, cash and/or other property), certificates for the number of Preferred Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreementappropriate, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreementappropriate, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Rights Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for such purposeat American Stock Transfer & Trust Company, 00 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth ten thousandth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The "Exercise Price Price" for the exercise of each Right shall initially be fifty dollars ($50.00) 35.00 and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, Shares and/or other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event Event, any Rights that are or were Beneficially Owned by a 2015% Stockholder or any Affiliate or Associate of a 2015% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 2015% Stockholder or an Affiliate or Associate of a 2015% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors of the Company shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, Price (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable transfer tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other Shares and/or securities, cash and/or other property), ) certificates for the number of Preferred Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths ten thousandths of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreementappropriate, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreementappropriate, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register and qualify under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares and/or Common Shares or other securities to be issued pursuant to the exercise of the Rights; providedPROVIDED, howeverHOWEVER, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Exercise of Rights. PURCHASE PRICE: EXPIRATION DATE OF RIGHTS. -------------------------------------------------------------
(a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d7(e) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Datehereof, the registered holder of any Right Rights Certificate may exercise the Rights represented evidenced thereby (except as otherwise provided herein including, without limitation, the restrictions on exercisability set forth in Section 9(c), Section 11(a)(iii) and Section 23(a) hereof) in whole or in part at any time after the Distribution Date upon surrender of such Right the Rights Certificate, with the form of election to purchase, including certificate, purchase and the certificate on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the principal office or offices of the Rights Agent designated for such purpose, together with payment of the Exercise aggregate Purchase Price with respect to the total number of one one-hundredths of a share of Preferred Stock (or other securities, cash or other assets, as the case may be) as to which such surrendered Rights are then exercisable, at or prior to the earlier of (i) the close of business on June 30, 2007 (the ''Final Expiration Date"), or (ii) the time at which the Rights are redeemed as provided in Section 23 hereof (the earlier of (i) and (ii) being herein referred to as the "Expiration Date").
(b) The Purchase Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a share of Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for Stock pursuant to the exercise of each a Right shall initially be fifty dollars ($50.00) 75, and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 13(a) hereof and the other provisions of this Agreementshall be payable in accordance with paragraph (c) below.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(fc) Upon receipt of a Right Rights Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed purchase and the certificate duly executed, with signature guaranteed, accompanied by payment payment, with respect to each Right so exercised, of the Exercise Purchase Price for each Right per one one-hundredth of a share of Preferred Stock (or other securities, cash or other assets, as the case may be) to be exercised purchased as set forth below and an amount equal to any applicable tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order of the Companytransfer tax, the Rights Agent shall shall, subject to Section 20(k) hereof, thereupon promptly (i)
(A) requisition from the any transfer agent of the shares of Preferred Shares Stock (oror make available, following if the occurrence of a Section 11(a)(iiRights Agent is the transfer agent for such shares) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the total number of one one-hundredths of a share of Preferred Shares (or such other securities) Stock to be purchased, purchased and the Company hereby irrevocably authorizes such its transfer agent to comply with all such requests, and/or, as provided in Section 14 hereofor (B) if the Company shall have elected to deposit the total number of shares of Preferred Stock issuable upon exercise of the Rights hereunder with a depository agent, requisition from the depositary depository agent described therein depositary depository receipts representing such number of one one-hundredths of a share of Preferred Share (or such other securities) Stock as are to be purchased (in which case certificates for the shares of Preferred Shares (or such other securities) Stock represented by such receipts shall be deposited by the transfer agent with such depositary the depository agent) and the Company hereby directs such depositary will direct the depository agent to comply with such request, (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash cash, if any, to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) shares in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts certificates or cashdepository receipts, cause the same to be delivered to or upon the order of the registered holder of such Right Rights Certificate, registered in such name or names as may be designated by such holder holder, and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash cash, if any, to or upon the order of the registered holder of such Right Rights Certificate. The payment of the Purchase Price (as such amount may be reduced pursuant to Section 11(a)(iii) hereof) shall be made in cash or by certified bank check or bank draft payable to the order of the Company. In the event that the Company is obligated to issue other securities (including Common Stock) of the Company, pay cash and/or distribute other property pursuant to Section 11(a) hereof, the Company will make all arrangements necessary so that such other securities, cash and/or other property are available for distribution by the Rights Agent, if and when appropriate. The Company reserves the right to require prior to the occurrence of a Triggering Event that, upon any exercise of Rights, a number of Rights be exercised so that only whole shares of Preferred Stock would be issued.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(hd) In case the registered holder of any Right Rights Certificate shall exercise less than all of the Rights represented evidenced thereby, a new Right Rights Certificate representing evidencing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to and delivered to, or upon the order of, the registered holder of such Right Certificate Rights Certificate, registered in such name or to names as may be designated by such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11(a)(ii) Event, any Rights beneficially owned by (i) an Acquiring Person or an Associate or Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person (or of any such Associate or Affiliate) who becomes a transferee after the Acquiring Person becomes such, or (iii) a transferee of an Acquiring Person (or of any such Associate or Affiliate) who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and receives such Rights pursuant to a transfer (whether or not for consideration) from the Acquiring Person to holders of equity interests in such Acquiring Person or to any Person with whom the Acquiring Person has any continuing agreement, arrangement or understanding regarding the transferred Rights, shall become null and void without any further action and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under any provision of this Agreement or otherwise. The Company shall use all reasonable efforts to insure that the provisions of this Section 7(e) and Section 4(b) hereof are complied with, but shall have no liability to any holder of Rights Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its Affiliates, Associates or transferees hereunder.
(f) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless such registered holder shall have (i) completed and signed the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed exercise, and signed by the registered holder thereof an the Company and the Rights Agent shall have been (ii) provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall reasonably request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Samples: Rights Agreement (Mmi Companies Inc)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Rights Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for such purposeat U.S. Stock Transfer Corporation, 0000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000-0000, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The "Exercise Price Price" for the exercise of each Right shall initially be fifty dollars ($50.00) 80.00 and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, Shares and/or other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of (i) the date of the first Section 11(a)(ii) Event or and (ii) the date of the first Section 13(a) Event Event, any Rights that are or were Beneficially Owned by a 20% Stockholder an Acquiring Person or any Affiliate or Associate of a 20% Stockholder an Acquiring Person at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder an Acquiring Person or an Affiliate or Associate of a 20% Stockholderan Acquiring Person) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) Date and upon the exercise of each Right and payment of the Exercise Price, : (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d7 (d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other Shares and/or securities, cash and/or other property), ) certificates for the number of Preferred Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such other securities) securities as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) securities represented by such receipts shall be deposited by the transfer agent with such depositary agent) ), and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) securities in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder holder, of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register and qualify the Preferred Shares and/or Common Shares or other securities to be issued pursuant to the exercise of the Rights under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rightsjurisdiction; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 7, unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an and the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder an Acquiring Person or an Affiliate or Associate of a 20% stockholder or transferees hereunderan Acquiring Person.
Appears in 1 contract
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Rights Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for such purposeat 200 Xxxxxx Xxxxxx, Canton, Massachusetts, 02021, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The “Exercise Price Price” for the exercise of each Right shall initially be fifty dollars ($50.00) 150.00 and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, Shares and/or other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event Event, any Rights that are or were Beneficially Owned by a 20% Triggering Stockholder or any Affiliate or Associate of a 20% Triggering Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Triggering Stockholder or an Affiliate or Associate of a 20% Triggering Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors of the Company shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, Price in (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable transfer tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's ’s check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other Shares and/or securities, cash and/or other property), ) certificates for the number of Preferred Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreementappropriate, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreementappropriate, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register and qualify under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares and/or Common Shares or other securities to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's ’s duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Rights Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for such purposeat Mellon Investor Services LLC, 000 Xxxxx Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth hundredth
of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The “Exercise Price Price” for the exercise of each Right shall initially be fifty dollars ($50.00) 30.00 and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, Shares and/or other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event Event, any Rights that are or were Beneficially Owned by a 2015% Stockholder or any Affiliate or Associate of a 2015% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 2015% Stockholder or an Affiliate or Associate of a 2015% Stockholder) shall thereafter have no right to exercise or exchange such Rights. The Company will notify the Rights Agent when this Section 7(d) applies and shall give the Rights Agent written notice of the identity of such 15% Stockholder, Affiliate or Associate, or the nominee of any of the foregoing. The Rights Agent may rely on such notice in carrying out its duties under this Agreement and shall be deemed not to have any knowledge of the identity of any such 15% Stockholder, Affiliate or Associate, or the nominee of any of the foregoing unless and until it shall have received such notice.
(e) Prior to the Distribution Date, if a majority of the Board of Directors of the Company shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, Price (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's ’s check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other Shares and/or securities, cash and/or other property), ) certificates for the number of Preferred Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreementappropriate, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreementappropriate, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register and qualify under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares and/or Common Shares or other securities to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's ’s duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Samples: Rights Agreement (Chromavision Medical Systems Inc)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to but not including the Close of Business on the earlier of the Redemption Date or the Rights Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby (except as otherwise provided herein) in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (oror Common Shares, following other securities, cash and/or other property in accordance with the provisions of this Agreement). The Company shall promptly notify the Rights Agent in writing upon the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Eventthe Rights Expiration Date and, Common Shares and/or other securities)if such notification is given orally, the Company shall promptly confirm same in writing. Until such notice is received by the Rights Agent, the Rights Agent may presume conclusively for all purposes, that the Rights Expiration Date has not occurred.
(c) The “Exercise Price Price” for the exercise of each Right shall initially be fifty dollars ($50.00) 20.00 and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the number of Preferred Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.other
Appears in 1 contract
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for in New York, New York, along with a signature guarantee and such purposeother and further documentation as the Rights Agent may reasonably request, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth thousandth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares Shares, other securities cash and/or other securitiesproperty in accordance with the provisions of this Agreement).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars $60 ($50.00sixty dollars) and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other propertyproperty in accordance with the provisions of this Agreement) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event Event, any Rights that are or were Beneficially Owned by a 2015% Stockholder or any Affiliate or Associate of a 2015% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 2015% Stockholder or an Affiliate or Associate of a 2015% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors of the Company shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable transfer tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other propertyproperty in accordance with the provisions of this Agreement), certificates for the number of Preferred Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths thousandths of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreementappropriate, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreementappropriate, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; providedPROVIDED, howeverHOWEVER, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Samples: Rights Agreement (Magnetek Inc)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the The registered holder of any Right Certificate may exercise the Rights represented evidenced thereby (except as otherwise provided herein, including Sections 5(e), 5(f), 7(c) and 8(a)) in whole or in part at any time after the Distribution Date and prior to the Expiration Date upon surrender of such the Right Certificate, with the form of election to purchase, including certificate, purchase and the certificate on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money of the United States of America by certified check or bank draft payable in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event immediately available or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement next day funds to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities order of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Purchase Price equal with respect to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right Rights then to be exercised and an amount equal to any applicable tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order charge.
(b) Upon satisfaction of the Companyrequirements of Section 5(a) and subject to Section 17(k), the Rights Agent shall thereupon promptly (i) (A) requisition from the any transfer agent of the Preferred Shares Stock (oror make available, following if the occurrence of a Section 11(a)(iiRights Agent is the transfer agent therefor) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the total number of one one-hundredths of a share of Preferred Shares (or such other securities) Stock to be purchased, purchased (and the Company hereby irrevocably authorizes such its transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof) or (B) if the Company shall have elected to deposit the shares of Preferred Stock issuable upon exercise of the Rights with a depositary agent, requisition from the depositary agent described therein depositary receipts representing interests in such number of one one-hundredths of a share of Preferred Share (or such other securities) as are Stock to be purchased (in which case certificates for the shares of Preferred Shares (or such other securities) Stock represented by such receipts shall be deposited by the transfer agent with such the depositary agent) agent and the Company hereby directs such will direct the depositary agent to comply with such request), (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash cash, if any, to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) shares in accordance with Section 14 hereof, 11 and (iii) after receipt of such certificates, certificates or depositary receipts or and cash, if any, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate (with such certificates or receipts registered in such name or names as may be designated by such holder). If the Company is obligated to deliver Common Stock or other securities or assets pursuant to this Agreement, the Company will make all arrangements necessary so that such securities and assets are available for delivery by the Rights Agent, if and when necessary to comply with this agreement.
(c) Each Person (other than the Company) in whose name any certificate for Preferred Stock is issued upon the exercise of Rights shall for all purposes be deemed to have become the holder of record of such Preferred Stock represented thereby on, and such certificate shall be dated, the date upon which the Right Certificate evidencing such Rights was duly surrendered and payment of the Purchase Price (and any taxes or charges) was made; provided that if the date of such surrender and payment is a date upon which the transfer books of the Company relating to the Preferred Stock are closed, such Person shall be deemed to have become the record holder of such shares on, and such certificate shall be dated, the next succeeding Business Day on which the applicable transfer books of the Company are open. Prior to the exercise of the Rights evidenced thereby, the holder of a Right Certificate shall not be entitled to any rights of a stockholder of the Company with respect to shares for which the Rights shall be exercisable, including the right to vote, to receive dividends or other distributions or to exercise any preemptive rights, and shall not be entitled to receive any notice of any proceedings of the Company except as provided herein.
(d) In case the registered holder of any Right Certificate shall exercise less than all the Rights evidenced thereby, a new Right Certificate evidencing the number of Rights remaining unexercised shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof11.
(e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 8(a)(ii) Event, any Rights Beneficially Owned by (i) an Acquiring Person or an Associate or Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person (or of any such Associate or Affiliate of an Acquiring Person) who (A) becomes a transferee after a Section 8(a)(ii) Event, (B) becomes a transferee prior to or concurrently with a Section 8(a)(ii) Event and receives such Rights pursuant to either (1) a transfer (whether or not for consideration) from the Acquiring Person (or any such Associate or Affiliate) to holders of equity interests in such Acquiring Person (or in any such Associate or Affiliate) or to any Person with whom the Acquiring Person (or any such Associate or Affiliate) has any continuing agreement, arrangement or understanding regarding the transferred Rights or (2) a transfer which the Board determines in good faith is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 5(e), shall become null and void without any further action, and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under this Agreement or otherwise. The Company shall promptly notify the Rights Agent in writing when this Section 5(e) applies and shall use all reasonable efforts to insure that the provisions of this Section 5(e) are complied with, but neither the Company nor the Rights Agent shall have any liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its Affiliates and Associates or any transferee of any of them hereunder.
(f) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a any purported transfer pursuant to Section 4 or exercise pursuant to this Section 5 unless the registered holder of the applicable Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless (i) shall have duly and properly completed and signed the certificate contained in the form of assignment or election to purchase purchase, as the case may be, set forth on the reverse side of the Rights Right Certificate surrendered for such exercise transfer or exercise, as the case may be, (ii) shall not have indicated an affirmative response to clause 1 or 2 thereof and (iii) shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall reasonably request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Samples: Rights Agreement (Genta Inc De/)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for in Ridgefield Park, New Jersey, along with a signature guarantee and such purposeother and further documentation as the Rights Agent may reasonably request, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Common Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares Shares, other securities cash and/or other securitiesproperty in accordance with the provisions of this Agreement).
(c) The Exercise Price for each Common Share pursuant to the exercise of each Right shall initially be fifty dollars $110 ($50.00One Hundred and Ten Dollars) and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Common Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Sharescash, other securities, cash securities and/or other propertyproperty in accordance with the provisions of this Agreement) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event Distribution Date, any Rights that are or were Beneficially Owned by (i) a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder, (ii) a transferee of a 20% Stockholder (or of any such Associate or Affiliate) who becomes a transferee after the 20% Stockholder becomes such, or (iii) a transferee of a 20% Stockholder (or of any such Associate or Affiliate) who becomes a transferee prior to or concurrently with a 20% Stockholder becoming such and receives such Rights pursuant to either (A) a transfer (whether or not for consideration) from the 20% Stockholder to holders of equity interests in such 20% Stockholder or to any Person with whom the 20% Stockholder has any continuing agreement, arrangement or understanding regarding the transferred Rights, or (B) a transfer which the Board of Directors of the Company has determined is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 7(d), at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors of the Company shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Common Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity or debt securities of the Company, (iii) debt securities of the Company, (iv) other property or (viv) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Common Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable transfer tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Common Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other propertysecurities in accordance with the provisions of this Agreement), certificates for the number of Preferred Common Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreementappropriate, requisition from the Company the amount of cash or property to be paid in lieu delivered upon exercise of issuance of fractional Preferred Shares (or such other securities) Rights in accordance with Section 14 the provisions hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreementappropriate, after receipt thereof, deliver such cash and/or property to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Common Shares or other securities to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Exercise of Rights. (a) Until In accordance with the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) terms and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior subject to the Close of Business on conditions hereof, each Right represents the earlier of right to purchase one (1) Share at the Redemption Date or Purchase Price upon the Expiration Date, the registered holder of any Right Certificate may valid exercise the Rights represented thereby in whole or in part upon surrender of such Right. Each Right, however, may not be validly exercised until such time as that Right Certificatehas become an Exercisable Right (as defined below). The Rights can only become Exercisable Rights upon achievement by Genopoietic, S.A., a French SOCIETE ANONYME ("GENOPOIETIC"), with the form assistance of election to purchasethe Holder, including certificateof the Milestones set forth on EXHIBIT A hereto (each a "MILESTONE" or, collectively, the "MILESTONES"). The maximum number of Rights that may become Exercisable Rights upon the achievement of each Milestone is set forth on EXHIBIT A hereto and depends on the reverse side thereof properly completed and duly executeddate on which such Milestone is achieved. When the Holder believes that a Milestone has been achieved, with signature guaranteed, he shall give written notice (the "MILESTONE NOTICE") to the Rights Agent at the office Company of the Rights Agent designated for such purpose, together with payment achievement of the Exercise Price for each Right exercised. Upon relevant Milestone and the exercise number of an Rights that the Holder believes have become exercisable Right and payment as a result of the Exercise Price in accordance with achievement of the provisions of this Agreementsuch Milestone, and the holder Company shall have thirty (30) days from its receipt of such Right Milestone Notice to object. In the event the Company does not object within such thirty (30) day period, then the Holder shall be entitled to receivepurchase at the Purchase Price the number of Shares that correspond to the number of Rights specified in the Milestone Notice (the "EXERCISABLE RIGHTS"). If, subject however, the Company does object within such thirty (30) day period, then the Company and the Holder shall use reasonable good faith efforts to adjustment as provided hereinresolve such dispute. If the parties are unable to resolve such dispute within thirty (30) days, one one-hundredth of a Preferred Share (orhowever, following then either party may submit the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Eventdispute to judicial determination to take place in Kansas City, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money of the United States of America Missouri in accordance with Section 7(f) 12 hereof. The Exercise Price , and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right Exercisable Rights shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and reasonably determined by the other provisions of this Agreement.
court. All Rights that have not become Exercisable Rights within one hundred eighty (d180) Notwithstanding anything in this Agreement to the contrary, from and days after the earlier achievement of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date relevant Milestone shall expire and be null and voidvoid and of no further force or effect, and for all purposes of this Agreement such Rights shall thereafter be deemed not unless the matter has been referred to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable tax or governmental charge required to be paid by the holder of such Right Certificate judicial determination in accordance with Section 9 12 hereof within the said one hundred eighty (180) day period. The Exercisable Rights must be exercised no later than one (1) year after the achievement of the corresponding Milestone (the "EXERCISE PERIOD") or such Exercisable Rights shall expire and be null and void and of no further force or effect. The Exercisable Rights may be purchased in whole at any time, or in part from time to time, during the applicable Exercise Period by the Holder by delivery of a Rights Exercise Form (in the form attached hereto as EXHIBIT B) at the address set forth in Section 10(a) hereof, together with proper payment of the Purchase Price multiplied by the number of Exercisable Rights being exercised made by certified check or cashier's official bank check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the number of Preferred Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the The registered holder of any Right Certificate may exercise the Rights represented evidenced thereby (except as otherwise provided herein, including Sections 1(l), 1(m) and 1(o)) in whole or in part at any time after a Distribution Date and prior to the Expiration Date upon surrender of such the Right Certificate, with the form of election to purchase, including certificate, purchase and the certificate on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the principal office or offices of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money of the United States of America by certified check or bank draft payable in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event immediately available or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement next day funds to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities order of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Purchase Price equal with respect to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right Rights then to be exercised and an amount equal to any applicable transfer tax or other governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order charge.
(i) Upon satisfaction of the Companyrequirements of Section 11(a) and subject to Section 1(xx), the Rights Agent shall thereupon promptly (iSection 12(A) requisition from the any transfer agent of the Preferred Shares Stock (oror make available, following if the occurrence of a Section 11(a)(iiRights Agent is the transfer agent therefor) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the total number of one one-millionths of a share of Preferred Shares (or such other securities) Stock to be purchased, purchased (and the Company hereby irrevocably authorizes such its transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof) or (B) if the Company shall have elected to deposit the shares of Preferred Stock issuable upon exercise of the Rights with a depositary agent, requisition from the depositary agent described therein depositary receipts representing interests in such number of one one-hundredths millionths of a share of Preferred Share (or such other securities) as are Stock to be purchased (in which case certificates for the shares of Preferred Shares (or such other securities) Stock represented by such receipts shall be deposited by the transfer agent with such the depositary agent) agent and the Company hereby directs such will direct the depositary agent to comply with such request), (ii) when necessary to comply with this Agreement, Section 13 requisition from the Company the amount of cash cash, if any, to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) shares in accordance with Section 29 and Section 14 hereof, (iii) after receipt of such certificates, certificates or depositary receipts or and cash, if any, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate (with such certificates or receipts registered in such name or names as may be designated by such holder). If the Company is obligated to deliver Common Stock or other securities or assets pursuant to this Rights Plan, the Company will make all arrangements necessary so that such securities and assets are available for delivery by the Rights Agent, if and when appropriate.
(j) Each Person (other than the Company) in whose name any certificate for Preferred Stock is issued upon the exercise of Rights shall for all purposes be deemed to have become the holder of record of such Preferred Stock represented thereby on, and such certificate shall be dated, the date upon which the Right Certificate evidencing such Rights was duly surrendered and payment of the Purchase Price (and any transfer taxes or other governmental charges) was made; provided that if the date of such surrender and payment is a date upon which the transfer books of the Company relating to the Preferred Stock are closed, such Person shall be deemed to have become the record holder of such shares on, and such certificate shall be dated, the next succeeding Business Day on which the applicable transfer books of the Company are open. Prior to the exercise of the Rights evidenced thereby, the holder of a Right Certificate shall not be entitled to any rights of a stockholder of the Company with respect to shares for which the Rights shall be exercisable, including the right to vote, to receive dividends or other distributions or to exercise any preemptive rights, and shall not be entitled to receive any notice of any proceedings of the Company except as provided herein.
(k) In case the registered holder of any Right Certificate shall exercise less than all the Rights evidenced thereby, a new Right Certificate evidencing the number of Rights remaining unexercised shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof29.
(il) Notwithstanding anything in this Agreement Rights Plan to the contrary (except for the last two sentences of this Section 6(e)), any Rights Beneficially Owned by Section 15 an Acquiring Person from and after the date on which the Acquiring Person becomes such or Section 16 a transferee of Rights Beneficially Owned by an Acquiring Person who (A) becomes a transferee after the Stock Acquisition Date with respect to such Acquiring Person or (B) becomes a transferee prior to or concurrently with the Stock Acquisition Date with respect to such Acquiring Person and receives such Rights (I) with actual knowledge that the transferor is or was an Acquiring Person or (II) pursuant to either (x) a transfer (whether or not for consideration) from the Acquiring Person to holders of equity interests in such Acquiring Person or to any Person with whom the Acquiring Person has any continuing agreement, arrangement or understanding regarding the transferred Rights or (y) a transfer which the Board determines in good faith is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 1(l), shall become null and void without any further action, and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under this Rights Plan or otherwise. The Company shall use all reasonable efforts to insure that the provisions of this Section 1(l) are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or any transferee of an Acquiring Person hereunder. If a Person in Specified Person Group II is an Acquiring Person, any references to “Rights Beneficially Owned” by such Acquiring Person shall exclude any Rights held by each Person in Specified Person Group I; provided that the Persons in Specified Person Group I are Grandfathered Persons or have failed to be Grandfathered Persons solely as a result of one or more In-Kind Distributions. For the avoidance of doubt, each security that is a Covered Security, share of Investor Preferred Stock, Additional Share or Warrant (each within the meaning of the Specified Exchange Agreement) shall not be subject to dilution under this Rights Plan, and the Rights related thereto shall be exercisable, so long as (A) the Persons in Specified Person Group I are Grandfathered Persons (or have failed to be Grandfathered Persons solely as a result of one or more In-Kind Distributions) and (B) a Person in Specified Person Group I has continuously since the Specified Exchange Closing Date (I) had legal title to such security (or a predecessor security that had, pursuant to its terms, been converted or exchanged into such security), (II) been the registered or record owner of such security (or a predecessor security that had, pursuant to its terms, been converted or exchanged into such security), or (III) held such security (or a predecessor security that had, pursuant to its terms, been converted or exchanged into such security) through one or more custodians, depositaries, broker-dealer firms and/or other similar intermediaries.
(m) Notwithstanding anything in this Rights Plan to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a any purported transfer pursuant to Section 10 or exercise pursuant to this Section 11 unless the registered holder of the applicable Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless 17 shall have completed and signed the certificate contained in the form of assignment or election to purchase purchase, as the case may be, set forth on the reverse side of the Rights Right Certificate surrendered for such exercise transfer or exercise, as the case may be, Section 18 shall not have indicated an affirmative response to clause 1 or 2 thereof and Section 19 shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall reasonably request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Samples: Exchange Agreement (Citigroup Inc)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the The registered holder of any Right Certificate may exercise the Rights represented evidenced thereby (except as otherwise provided herein, including Sections 5(e), 5(f), 7(c) and 8(a)) in whole or in part at any time after the Distribution Date and prior to the Expiration Date upon surrender of such the Right Certificate, with the form of election to purchase, including certificate, purchase and the certificate on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the principal office or offices of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money of the United States of America by certified check or bank draft payable in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event immediately available or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement next day funds to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities order of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Purchase Price equal with respect to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right Rights then to be exercised and an amount equal to any applicable transfer tax or other governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order charge.
(b) Upon satisfaction of the Companyrequirements of Section 5(a) and subject to Section 17(k), the Rights Agent shall thereupon promptly (i)
(A) requisition from the any transfer agent of the Preferred Shares Stock (oror make available, following if the occurrence of a Section 11(a)(iiRights Agent is the transfer agent therefor) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the total number of one one-thousandths of a share of Preferred Shares (or such other securities) Stock to be purchased, purchased (and the Company hereby irrevocably authorizes such its transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof) or (B) if the Company shall have elected to deposit the shares of Preferred Stock issuable upon exercise of the Rights with a depositary agent, requisition from the depositary agent described therein depositary receipts representing interests in such number of one one-hundredths thousandths of a share of Preferred Share (or such other securities) as are Stock to be purchased (in which case certificates for the shares of Preferred Shares (or such other securities) Stock represented by such receipts shall be deposited by the transfer agent with such the depositary agent) agent and the Company hereby directs such will direct the depositary agent to comply with such request), (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash cash, if any, to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) shares in accordance with Section 14 hereof, 11 and (iii) after receipt of such certificates, certificates or depositary receipts or and cash, if any, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate (with such certificates or receipts registered in such name or names as may be designated by such holder). If the Company is obligated to deliver Common Stock or other securities or assets pursuant to this Agreement, the Company will make all arrangements necessary so that such securities and assets are available for delivery by the Rights Agent, if and when appropriate.
(c) Each Person (other than the Company) in whose name any certificate for Preferred Stock is issued upon the exercise of Rights shall for all purposes be deemed to have become the holder of record of such Preferred Stock represented thereby on, and such certificate shall be dated, the date upon which the Right Certificate evidencing such Rights was duly surrendered and payment of the Purchase Price (and any transfer taxes or other governmental charges) was made; provided that if the date of such surrender and payment is a date upon which the transfer books of the Company relating to the Preferred Stock are closed, such Person shall be deemed to have become the record holder of such shares on, and such certificate shall be dated, the next succeeding Business Day on which the applicable transfer books of the Company are open. Prior to the exercise of the Rights evidenced thereby, the holder of a Right Certificate shall not be entitled to any rights of a stockholder of the Company with respect to shares for which the Rights shall be exercisable, including the right to vote, to receive dividends or other distributions or to exercise any preemptive rights, and shall not be entitled to receive any notice of any proceedings of the Company except as provided herein.
(d) In case the registered holder of any Right Certificate shall exercise less than all the Rights evidenced thereby, a new Right Certificate evidencing the number of Rights remaining unexercised shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof11.
(e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 8(a)(ii) Event, any Rights Beneficially Owned by (i) an Acquiring Person or an Associate or Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person (or of any such Associate or Affiliate of an Acquiring Person) who (A) becomes a transferee after a Section
(a) (ii) Event,(B) becomes a transferee prior to or concurrently with a Section 8(a)(ii) Event and receives such Rights pursuant to either (1) a transfer (whether or not for consideration) from the Acquiring Person (or any such Associate or Affiliate) to holders of equity interests in such Acquiring Person (or in any such Associate or Affiliate) or to any Person with whom the Acquiring Person (or any such Associate or Affiliate) has any continuing agreement, arrangement or understanding regarding the transferred Rights or (2) a transfer which the Board determines in good faith is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 5(e), shall become null and void without any further action, and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under this Agreement or otherwise. The Company shall use all reasonable efforts to insure that the provisions of this Section 5(e) are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its Affiliates and Associates or any transferee of any of them hereunder.
(f) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a any purported transfer pursuant to Section 4 or exercise pursuant to this Section 5 unless the registered holder of the applicable Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless (i) shall have completed and signed the certificate contained in the form of assignment or election to purchase purchase, as the case may be, set forth on the reverse side of the Rights Right Certificate surrendered for such exercise transfer or exercise, as the case may be, (ii) shall not have indicated an affirmative response to clause 1 or 2 thereof and (iii) shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall reasonably request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Samples: Rights Agreement (Therasense Inc)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the The registered holder of any Right Certificate may exercise the Rights represented evidenced thereby (except as otherwise provided herein, including Sections 6(e), 6(f), 8(c) and 9(a)) in whole or in part at any time after the Distribution Date and prior to the Expiration Date upon surrender of such the Right Certificate, with the form of election to purchase, including certificate, purchase and the certificate on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the principal office or offices of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money of the United States of America by certified check or bank draft payable in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event immediately available or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement next day funds to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities order of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Purchase Price equal with respect to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right Rights then to be exercised and an amount equal to any applicable transfer tax or other governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order charge.
(b) Upon satisfaction of the Companyrequirements of Section 6(a) and subject to Section 18(k), the Rights Agent shall thereupon promptly (i) (A) requisition from the any transfer agent of the Preferred Shares Stock (oror make available, following if the occurrence of a Section 11(a)(iiRights Agent is the transfer agent therefor) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the total number of one one-thousandths of a share of Preferred Shares (or such other securities) Stock to be purchased, purchased (and the Company hereby irrevocably authorizes such its transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof) or (B) if the Company shall have elected to deposit the shares of Preferred Stock issuable upon exercise of the Rights with a depositary agent, requisition from the depositary agent described therein depositary receipts representing interests in such number of one one-hundredths thousandths of a share of Preferred Share (or such other securities) as are Stock to be purchased (in which case certificates for the shares of Preferred Shares (or such other securities) Stock represented by such receipts shall be deposited by the transfer agent with such the depositary agent) agent and the Company hereby directs such will direct the depositary agent to comply with such request), (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash cash, if any, to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) shares in accordance with Section 14 hereof, 12 and (iii) after receipt of such certificates, certificates or depositary receipts or and cash, if any, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate (with such certificates or receipts registered in such name or names as may be designated by such holder). If the Company is obligated to deliver Common Stock or other securities or assets pursuant to this Agreement, the Company will make all arrangements necessary so that such securities and assets are available for delivery by the Rights Agent, if and when appropriate.
(c) Each Person (other than the Company) in whose name any certificate for Preferred Stock is issued upon the exercise of Rights shall for all purposes be deemed to have become the holder of record of such Preferred Stock represented thereby on, and such certificate shall be dated, the date upon which the Right Certificate evidencing such Rights was duly surrendered and payment of the Purchase Price (and any transfer taxes or other governmental charges) was made; provided that if the date of such surrender and payment is a date upon which the transfer books of the Company relating to the Preferred Stock are closed, such Person shall be deemed to have become the record holder of such shares on, and such certificate shall be dated, the next succeeding Business Day on which the applicable transfer books of the Company are open. Prior to the exercise of the Rights evidenced thereby, the holder of a Right Certificate shall not be entitled to any rights of a stockholder of the Company with respect to shares for which the Rights shall be exercisable, including the right to vote, to receive dividends or other distributions or to exercise any preemptive rights, and shall not be entitled to receive any notice of any proceedings of the Company except as provided herein.
(d) In case the registered holder of any Right Certificate shall exercise less than all the Rights evidenced thereby, a new Right Certificate evidencing the number of Rights remaining unexercised shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof12.
(e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 9(a)(ii) Event, any Rights Beneficially Owned by (i) an Acquiring Person or an Associate or Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person (or of any such Associate or Affiliate of an Acquiring Person) who (A) becomes a transferee after a Section 9(a)(ii) Event, (B) becomes a transferee prior to or concurrently with a Section 9(a)(ii) Event and receives such Rights pursuant to either (1) a transfer (whether or not for consideration) from the Acquiring Person (or any such Associate or Affiliate) to holders of equity interests in such Acquiring Person (or in any such Associate or Affiliate) or to any Person with whom the Acquiring Person (or any such Associate or Affiliate) has any continuing agreement, arrangement or understanding regarding the transferred Rights or (2) a transfer which the Board determines in good faith is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 6(e), shall become null and void without any further action, and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under this Agreement or otherwise. The Company shall use all reasonable efforts to insure that the provisions of this Section 6(e) are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its Affiliates and Associates or any transferee of any of them hereunder.
(f) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a any purported transfer pursuant to Section 5 or exercise pursuant to this Section 6 unless the registered holder of the applicable Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless (i) shall have completed and signed the certificate contained in the form of assignment or election to purchase purchase, as the case may be, set forth on the reverse side of the Rights Right Certificate surrendered for such exercise transfer or exercise, as the case may be, (ii) shall not have indicated an affirmative response to clause 1 or 2 thereof and (iii) shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall reasonably request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Samples: Rights Agreement (Aventine Renewable Energy Holdings Inc)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).to
(c) The Exercise Price for each one one-hundredth (1/100th) of a Preferred Share pursuant to the exercise of each Right shall initially be fifty dollars $100.00 ($50.00One Hundred Dollars) and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other propertyproperty in accordance with the provisions of this Agreement) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event Event, any Rights that are or were Beneficially Owned by (i) a 2010% Stockholder or any Affiliate or Associate of a 2010% Stockholder, (ii) a transferee of a 10% Stockholder (or of any such Associate or Affiliate) who becomes a transferee after the 10% Stockholder becomes such, or (iii) a transferee of a 10% Stockholder (or of any such Associate or Affiliate) who becomes a transferee prior to or concurrently with a 10% Stockholder becoming such and receives such Rights pursuant to either (A) a transfer (whether or not for consideration) from the 10% Stockholder to holders of equity interests in such 10% Stockholder or to any Person with whom the 10% Stockholder has any continuing agreement, arrangement or understanding regarding the transferred Rights, or (B) a transfer which the Board of Directors of the Company has determined is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 7(d), at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 2010% Stockholder or an Affiliate or Associate of a 2010% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors of the Company shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.aggregate
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable transfer tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other propertyproperty in accordance with the provisions of this Agreement), certificates for the number of one one- hundredth (1/100th) of a Preferred Shares Share (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one one-hundredths hundredth (1/100th) of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreementappropriate, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreementappropriate, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; providedPROVIDED, howeverHOWEVER, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Samples: Rights Agreement (Paula Financial)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Rights Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for such purposeat American Stock Transfer & Trust Company, 6000 00xx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The “Exercise Price Price” for the exercise of each Right shall initially be fifty dollars ($50.00) 15.00 and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, Shares and/or other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event Event, any Rights that are or were Beneficially Owned by a 20% Stockholder Shareholder or any Affiliate or Associate of a 20% Stockholder Shareholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder Shareholder or an Affiliate or Associate of a 20% StockholderShareholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors of the Company shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, Price (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other Shares and/or securities, cash and/or other property), ) certificates for the number of Preferred Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreementappropriate, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreementappropriate, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register and qualify under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section Sections 6 and 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Samples: Rights Agreement (Giga Tronics Inc)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Rights Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the aggregate Exercise Price for the number of Common Shares for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Common Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares Shares, cash, securities and/or other securitiesproperty).
(c) The “Exercise Price Price” for the exercise of each Right shall initially be fifty dollars ($50.00) 45.00 and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Common Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securitiescash, cash securities and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event Event, any Rights that are or were Beneficially Owned by a 20% Triggering Stockholder or any Affiliate or Associate of a 20% Triggering Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Triggering Stockholder or an Affiliate or Associate of a 20% Triggering Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors of the Company shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Common Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, Price (i) cash, (ii) other equity or derivative securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Common Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's ’s check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Common Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securitiescash, cash securities and/or other property), ) certificates for the number of Preferred Common Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share Common Shares (or such other securities) as are to be purchased (in which case certificates for the Preferred Common Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreementappropriate, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Common Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreementappropriate, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register and qualify under the Securities Act and any applicable securities law of any jurisdiction the Preferred Common Shares and/or other securities to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's ’s duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) The Company shall give the Rights Agent written notice of the identity of any such Triggering Stockholder, Associate or Affiliate, or the nominee of any of the foregoing, and the Rights Agent may rely on such notice in carrying out its duties under this Agreement and shall be deemed not to have any knowledge of the identity of any such Triggering Stockholder, Associate or Affiliate, or the nominee of any of the foregoing unless and until it shall have received such notice.
(j) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported transfer or exercise as set forth in this Section 7 unless such registered holder shall have (i) completed and signed the certificate contained in following the form of assignment or election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed assignment or exercise, and signed by the registered holder thereof an the Company and the Rights Agent shall have been (ii) provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or any Affiliates or Associates thereof as the Company or the Rights Agent shall reasonably request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Samples: Rights Agreement (CSK Auto Corp)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Rights Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for such purposeset forth in Section 2.6, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The “Exercise Price Price” for the exercise of each Right shall initially be fifty dollars ($50.00) 15.00 and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, Shares and/or other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of (i) the date of the first Section 11(a)(ii) Event or and (ii) the date of the first Section 13(a) Event Event, any Rights that are or were Beneficially Owned by a 20% Stockholder an Acquiring Person or any Affiliate or Associate of a 20% Stockholder an Acquiring Person at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder an Acquiring Person or an Affiliate or Associate of a 20% Stockholderan Acquiring Person) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors of the Company shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) Date and upon the exercise of each Right and payment of the Exercise Price, : (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Rights Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's ’s check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other Shares and/or securities, cash and/or other property), ) certificates for the number of Preferred Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such other securities) securities as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) securities represented by such receipts shall be deposited by the transfer agent with such depositary agent) ), and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) securities in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder holder, of such Right Certificate, registered in such name or names as may be designated by such holder holder, and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register and qualify the Preferred Shares and/or Common Shares or other securities to be issued pursuant to the exercise of the Rights under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rightsjurisdiction; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's ’s duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 7, unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an and the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's ’s failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder an Acquiring Person or an Affiliate or Associate of a 20% stockholder or transferees hereunderan Acquiring Person.
Appears in 1 contract
Samples: Rights Agreement (SoftBrands, Inc.)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificatethe
(a) Event, with the form of election to purchaseCommon Shares, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price other securities cash and/or other property in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for each one four-thousandth (1/4000th) of a Preferred Share pursuant to the exercise of each Right shall initially be fifty dollars $500 ($50.00Five Hundred Dollars) and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other propertyproperty in accordance with the provisions of this Agreement) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event Event, any Rights that are or were Beneficially Owned by (i) a 2015% Stockholder or any Affiliate or Associate of a 2015% Stockholder, (ii) a transferee of a 15% Stockholder (or of any such Associate or Affiliate) who becomes a transferee after the 15% Stockholder becomes such, or (iii) a transferee of a 15% Stockholder (or of any such Associate or Affiliate) who becomes a transferee prior to or concurrently with a 15% Stockholder becoming such and receives such Rights pursuant to either (A) a transfer (whether or not for consideration) from the 15% Stockholder to holders of equity interests in such 15% Stockholder or to any Person with whom the 15% Stockholder has any continuing agreement, arrangement or understanding regarding the transferred Rights, or (B) a transfer which the Board of Directors of the Company has determined is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 7(d), at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 2015% Stockholder or an Affiliate or Associate of a 2015% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors of the Company shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, ,
(i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable transfer tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other propertyproperty in accordance with the provisions of this Agreement), certificates for the number of one four-thousandths (1/4000th) of a Preferred Shares Share (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of oneone four-hundredths thousandths (1/4000th) of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreementappropriate, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreementappropriate, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the The registered holder of any Right Certificate may exercise the Rights represented evidenced thereby (except as otherwise provided herein, including Sections 6(e), 6(f) 8(e), 12 and 20) in whole or in part at any time after a Distribution Date and prior to the Expiration Date upon surrender of such the Right Certificate, with the form of election to purchase, including certificate, purchase and the certificate on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the principal office or offices of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money of the United States of America by certified check or bank draft payable in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event immediately available or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement next day funds to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities order of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Purchase Price equal with respect to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right Rights then to be exercised and an amount equal to any applicable transfer tax or other governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order charge.
(b) Upon satisfaction of the Companyrequirements of Section 6(a) and subject to Section 17(k), the Rights Agent shall thereupon promptly (ii)(A) requisition from the any transfer agent of the Preferred Shares Stock (oror make available, following if the occurrence of a Section 11(a)(iiRights Agent is the transfer agent therefor) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the total number of one one-millionths of a share of Preferred Shares (or such other securities) Stock to be purchased, purchased (and the Company hereby irrevocably authorizes such its transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof) or (B) if the Company shall have elected to deposit the shares of Preferred Stock issuable upon exercise of the Rights with a depositary agent, requisition from the depositary agent described therein depositary receipts representing interests in such number of one one-hundredths millionths of a share of Preferred Share (or such other securities) as are Stock to be purchased (in which case certificates for the shares of Preferred Shares (or such other securities) Stock represented by such receipts shall be deposited by the transfer agent with such the depositary agent) agent and the Company hereby directs such will direct the depositary agent to comply with such request), (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash cash, if any, to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) shares in accordance with Section 14 hereof, 11 and (iii) after receipt of such certificates, certificates or depositary receipts or cashand cash (if any), cause the same to be delivered to or upon the order of the registered holder of such Right Certificate (with such certificates or receipts registered in such name or names as may be designated by such holder). If the Company is obligated to deliver Common Stock or other securities or assets pursuant to this Rights Plan, the Company will make all arrangements necessary so that such securities and assets are available for delivery by the Rights Agent, if and when appropriate.
(c) Each Person (other than the Company) in whose name any certificate for Preferred Stock is issued upon the exercise of Rights shall for all purposes be deemed to have become the holder of record of such Preferred Stock represented thereby on, and such certificate shall be dated, the date upon which the Right Certificate evidencing such Rights was duly surrendered and payment of the Purchase Price (and any applicable transfer taxes or other governmental charges) was made; provided that if the date of such surrender and payment is a date upon which the transfer books of the Company relating to the Preferred Stock are closed, such Person shall be deemed to have become the record holder of such shares on, and such certificate shall be dated, the next succeeding Business Day on which the Preferred Stock transfer books of the Company are open. Prior to the exercise of the Rights evidenced thereby, the holder of a Right Certificate shall not be entitled to any rights of a shareholder of the Company with respect to shares for which the Rights shall be exercisable, including the right to vote, to receive dividends or other distributions or to exercise any preemptive rights, and shall not be entitled to receive any notice of any proceedings of the Company except as provided herein.
(d) In case the registered holder of any Right Certificate shall exercise fewer than all the Rights evidenced thereby, a new Right Certificate evidencing the number of Rights remaining unexercised shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof11.
(ie) Notwithstanding anything in this Agreement Rights Plan to the contrary, any Rights Beneficially Owned by (i) an Acquiring Person from and after the date on which the Acquiring Person becomes such or (ii) a transferee of Rights Beneficially Owned by an Acquiring Person who (A) becomes a transferee after the public announcement relating to a Stock Acquisition Date with respect to an Acquiring Person who was identified on the Stock Acquisition Date or (B) becomes a transferee with respect to an Acquiring Person (or an Associate thereof) and receives such Rights (I) with actual knowledge that the transferor is or was an Acquiring Person (or an Associate of an Acquiring Person) or (II) pursuant to either (x) a transfer (whether or not for consideration) from the Acquiring Person (or an Associate thereof) to holders of equity interests in such Acquiring Person (or in such Associate thereof) or to any Person with whom the Acquiring Person (or an Associate thereof) has any continuing agreement, arrangement or understanding regarding the transferred Rights or (y) a transfer which the Board determines in good faith is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 6(e), shall become null and void without any further action, and no holder of such Rights (other than a transferee not of a type described in clause (ii)) shall have any rights whatsoever with respect to such Rights, whether under this Rights Plan or otherwise. The Company shall use all reasonable efforts to ensure that the provisions of this Section 6(e) are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or any transferee of an Acquiring Person hereunder.
(f) Notwithstanding anything in this Rights Plan to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a any purported transfer pursuant to Section 5 or exercise pursuant to this Section 6 unless the registered holder of the applicable Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless (i) shall have completed and signed the certificate contained in the form of assignment or election to purchase purchase, as the case may be, set forth on the reverse side of the Rights Right Certificate surrendered for such exercise transfer or exercise, as the case may be, (ii) shall not have indicated an affirmative response to clause 1 or 2 thereof, (iii) shall be in compliance with Section 12 and (iv) shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall reasonably request.
(jg) Neither the The Company nor the Rights Agent shall have any liability hereby waives application of each standstill or other similar provision relating to any Company Securities by which a registered holder of Rights or any other Person is bound as a result of the Company's failure date of this Rights Plan to make any determination under the extent necessary to permit such registered holder to exercise such Rights in accordance with this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunderRights Plan.
Appears in 1 contract
Samples: Shareholder Rights Plan (Sterling Financial Corp /Wa/)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Rights Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for such purposeat Olde Monmouth Stock Transfer Co., Inc., 00 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxx Xxxxxxxxx, XX 00000, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The "Exercise Price Price" for the exercise of each Right shall initially be fifty dollars ($50.00) 5.00 and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, Shares and/or other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of (i) the date of the first Section 11(a)(ii) Event or and (ii) the date of the first Section 13(a) Event Event, any Rights that are or were Beneficially Owned by a 20% Stockholder an Acquiring Person or any Affiliate or Associate of a 20% Stockholder an Acquiring Person at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder an Acquiring Person or an Affiliate or Associate of a 20% Stockholderan Acquiring Person) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors of the Company shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) Date and upon the exercise of each Right and payment of the Exercise Price, : (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other Shares and/or securities, cash and/or other property), ) certificates for the number of Preferred Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such other securities) securities as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) securities represented by such receipts shall be deposited by the transfer agent with such depositary agent) ), and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) securities in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder holder, of such Right Certificate, registered in such name or names as may be designated by such holder holder, and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register and qualify the Preferred Shares and/or Common Shares or other securities to be issued pursuant to the exercise of the Rights under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rightsjurisdiction; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 7, unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an and the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder an Acquiring Person or an Affiliate or Associate of a 20% stockholder or transferees hereunderan Acquiring Person.
Appears in 1 contract
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for in Ridgefield Park, New Jersey, along with a signature guarantee and such purposeother and further documentation as the Rights Agent may reasonably request, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one onefour-hundredth thousandth (1/4000th) of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares Shares, other securities cash and/or other securitiesproperty in accordance with the provisions of this Agreement).
(c) The Exercise Price for each one four-thousandth (1/4000th) of a Preferred Share pursuant to the exercise of each Right shall initially be fifty dollars $500 ($50.00Five Hundred Dollars) and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other propertyproperty in accordance with the provisions of this Agreement) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event Event, any Rights that are or were Beneficially Owned by (i) a 2015% Stockholder or any Affiliate or Associate of a 2015% Stockholder, (ii) a transferee of a 15% Stockholder (or of any such Associate or Affiliate) who becomes a transferee after the 15% Stockholder becomes such, or (iii) a transferee of a 15% Stockholder (or of any such Associate or Affiliate) who becomes a transferee prior to or concurrently with a 15% Stockholder becoming such and receives such Rights pursuant to either (A) a transfer (whether or not for consideration) from the 15% Stockholder to holders of equity interests in such 15% Stockholder or to any Person with whom the 15% Stockholder has any continuing agreement, arrangement or understanding regarding the transferred Rights, or (B) a transfer which the Board of Directors of the Company has determined is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 7(d), at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 2015% Stockholder or an Affiliate or Associate of a 2015% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors of the Company shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable transfer tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other propertyproperty in accordance with the provisions of this Agreement), certificates for the number of one four-thousandths (1/4000th) of a Preferred Shares Share (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of oneone four-hundredths thousandths (1/4000th) of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreementappropriate, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreementappropriate, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the The registered holder of any Right Certificate may exercise the Rights represented evidenced thereby (except as otherwise provided herein, including Sections 6(e), 6(f), 8(c) and 9(a)) in whole or in part at any time after the Distribution Date and prior to the Expiration Date upon surrender of such the Right Certificate, with the form of election to purchase, including certificate, purchase and the certificate on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money of the United States of America by certified check, cashier’s check bank draft or money order payable in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event immediately available or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement next day funds to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities order of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Purchase Price equal with respect to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right Rights then to be exercised and an amount equal to any applicable tax or governmental charge required to be paid by under Section 8(e) hereof. Except for those provisions herein which expressly survive the holder termination of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to this Agreement, this Agreement shall terminate at the order earlier of (a) if after the Distribution Date, the time the Rights are no longer exercisable hereunder, and (b) the Expiration Date.
(b) Upon satisfaction of the Companyrequirements of Section 6(a) and subject to Section 18(k), the Rights Agent shall thereupon promptly (i) (A) requisition from the any transfer agent of the Preferred Shares Stock (oror make available, following if the occurrence of a Section 11(a)(iiRights Agent is the transfer agent therefor) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the total number of one one-hundredths of a share of Preferred Shares (or such other securities) Stock to be purchased, purchased (and the Company hereby irrevocably authorizes each such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof) or (B) if the Company shall have elected to deposit the shares of Preferred Stock issuable upon exercise of the Rights with a depositary agent, requisition from the depositary agent described therein depositary receipts representing interests in such number of one one-hundredths of a share of Preferred Share (or such other securities) as are Stock to be purchased (in which case certificates for the shares of Preferred Shares (or such other securities) Stock represented by such receipts shall be deposited by the transfer agent with such the depositary agent) agent and the Company hereby directs each such the depositary agent to comply with such request), (ii) when necessary to comply with this Rights Agreement, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) shares in accordance with Section 14 12 hereof, (iii) after receipt of such certificates, certificates or depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, Certificate registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Rights Agreement, after receipt thereofreceipt, deliver such cash to or upon the order of the registered holder of such Right Certificate. If the Company is obligated to deliver Common Stock or other securities or assets pursuant to this Agreement, the Company will make all arrangements necessary so that such securities and assets are available for delivery by the Rights Agent, if and when appropriate.
(gc) Notwithstanding Each Person (other than the foregoing provisions Company) in whose name any certificate for Preferred Stock is issued upon the exercise of this Section 7Rights shall for all purposes be deemed to have become the holder of record of such Preferred Stock represented thereby on, and such certificate shall be dated, the exercisability date upon which the Right Certificate evidencing such Rights was duly surrendered and payment of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act Purchase Price (and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant taxes or other charges) was made. Prior to the exercise of the Rights; providedRights evidenced thereby, however, that nothing contained in this Section 7 the holder of a Right Certificate shall relieve not be entitled to any rights of a stockholder of the Company with respect to shares for which the Rights shall be exercisable, including the right to vote, to receive dividends or other distributions or to exercise any preemptive rights, and shall not be entitled to receive any notice of its obligations under Section 9(c) hereof. Upon any such suspension, proceedings of the Company shall notify the Rights Agentexcept as provided herein.
(hd) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented evidenced thereby, a new Right Certificate representing Rights equivalent to evidencing the number of Rights remaining unexercised shall be issued by the Rights Agent to and delivered to, or upon the order of, the registered holder of such Right Certificate Certificate, registered in such name or names as may be designated by such holder or to such holder's his duly authorized assigns, subject to the provisions of Section 14 12 hereof.
(e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 9(a)(ii) Event, any Rights Beneficially Owned by (i) an Acquiring Person or an Associate or Affiliate of an Acquiring Person or (ii) a transferee of an Acquiring Person (or of any such Associate or Affiliate of an Acquiring Person) who (A) becomes a transferee after a Section 9(a)(ii) Event, (B) becomes a transferee prior to or concurrently with a Section 9(a)(ii) Event and receives such Rights pursuant to either (1) a transfer (whether or not for consideration) from the Acquiring Person (or any such Associate or Affiliate) to holders of equity interests in such Acquiring Person (or in any such Associate or Affiliate) or to any Person with whom the Acquiring Person (or any such Associate or Affiliate) has any continuing agreement, arrangement or understanding regarding the transferred Rights or (2) a transfer which the Board determines in good faith is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 6(e), shall become null and void without any further action, and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under this Agreement or otherwise. The Company shall promptly notify the Rights Agent in writing when this Section 6(e) applies, and shall use all reasonable efforts to insure that the provisions of this Section 6(e) are complied with, but neither the Company nor the Rights Agent shall have any liability to any holder of Right Certificates or any other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its Affiliates and Associates or any transferee of any of them hereunder.
(f) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a any purported transfer pursuant to Section 5 or exercise pursuant to this Section 6 unless the registered holder of the applicable Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless (i) shall have properly completed and duly executed the certificate contained in the form of assignment or election to purchase purchase, as the case may be, set forth on the reverse side of the Rights Right Certificate surrendered for such exercise transfer or exercise, as the case may be, (ii) shall not have indicated an affirmative response to clause 1 or 2 thereof, (iii) shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) thereof and of the Rights evidenced thereby and the Affiliates and Associates of such Beneficial Owner (or Affiliates or Associates thereof former Beneficial Owner) as the Company or the Rights Agent shall reasonably request.
, and (jiv) Neither the Company nor the Rights Agent shall have paid a sum sufficient to cover any liability to tax or charge that may be imposed in connection with any holder transfer, split up, combination or exchange of Rights or any other Person Certificates as a result of the Company's failure to make any determination under this required by Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder8(e) hereof.
Appears in 1 contract
Samples: Rights Agreement (MSC Software Corp)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section Sections 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for such purposeat 00 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) 33.33 and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(iill(a)(ii) Event or a Section 13(a) Event, Common Shares, Shares and/or other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event Event, any Rights that are or were Beneficially Owned by a 2015% Stockholder or any Affiliate or Associate of a 2015% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 2015% Stockholder or an Affiliate or Associate of a 2015% Stockholder) shall 13 thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority majority, but not less than three, of the Board of Independent Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable transfer tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other Shares and/or securities, cash and/or other property), certificates for the number of Preferred Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreementappropriate, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreementappropriate, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the The registered holder of any Right Certificate may exercise the Rights represented evidenced thereby (except as otherwise provided herein, including Sections 6(e), 6(f) and 8(c)) in whole or in part at any time after a Distribution Date and prior to the Expiration Date upon surrender of such the Right Certificate, with the form of election to purchase, including certificate, purchase and the certificate on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the principal office or offices of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money of the United States of America by certified check or bank draft payable in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event immediately available or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement next day funds to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities order of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Purchase Price equal with respect to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right Rights then to be exercised and an amount equal to any applicable transfer tax or other governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order charge.
(b) Upon satisfaction of the Companyrequirements of Section 6(a) and subject to Section 18(k), the Rights Agent shall thereupon promptly (ii)(A) requisition from the any transfer agent of the Preferred Shares Stock (oror make available, following if the occurrence of a Section 11(a)(iiRights Agent is the transfer agent therefor) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the total number of one one-millionths of a share of Preferred Shares (or such other securities) Stock to be purchased, purchased (and the Company hereby irrevocably authorizes such its transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof) or (B) if the Company shall have elected to deposit the shares of Preferred Stock issuable upon exercise of the Rights with a depositary agent, requisition from the depositary agent described therein depositary receipts representing interests in such number of one one-hundredths millionths of a share of Preferred Share (or such other securities) as are Stock to be purchased (in which case certificates for the shares of Preferred Shares (or such other securities) Stock represented by such receipts shall be deposited by the transfer agent with such the depositary agent) agent and the Company hereby directs such will direct the depositary agent to comply with such request), (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash cash, if any, to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) shares in accordance with Section 14 hereof, 12 and (iii) after receipt of such certificates, certificates or depositary receipts or and cash, if any, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate (with such certificates or receipts registered in such name or names as may be designated by such holder). If the Company is obligated to deliver Common Stock or other securities or assets pursuant to this Rights Plan, the Company will make all arrangements necessary so that such securities and assets are available for delivery by the Rights Agent, if and when appropriate.
(c) Each Person (other than the Company) in whose name any certificate for Preferred Stock is issued upon the exercise of Rights shall for all purposes be deemed to have become the holder of record of such Preferred Stock represented thereby on, and such certificate shall be dated, the date upon which the Right Certificate evidencing such Rights was duly surrendered and payment of the Purchase Price (and any transfer taxes or other governmental charges) was made; provided that if the date of such surrender and payment is a date upon which the transfer books of the Company relating to the Preferred Stock are closed, such Person shall be deemed to have become the record holder of such shares on, and such certificate shall be dated, the next succeeding Business Day on which the applicable transfer books of the Company are open. Prior to the exercise of the Rights evidenced thereby, the holder of a Right Certificate shall not be entitled to any rights of a stockholder of the Company with respect to shares for which the Rights shall be exercisable, including the right to vote, to receive dividends or other distributions or to exercise any preemptive rights, and shall not be entitled to receive any notice of any proceedings of the Company except as provided herein.
(d) In case the registered holder of any Right Certificate shall exercise less than all the Rights evidenced thereby, a new Right Certificate evidencing the number of Rights remaining unexercised shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof12.
(ie) Notwithstanding anything in this Agreement Rights Plan to the contrary (except for the last two sentences of this Section 6(e)), any Rights Beneficially Owned by
(i) an Acquiring Person from and after the date on which the Acquiring Person becomes such or (ii) a transferee of Rights Beneficially Owned by an Acquiring Person who (A) becomes a transferee after the Stock Acquisition Date with respect to such Acquiring Person or (B) becomes a transferee prior to or concurrently with the Stock Acquisition Date with respect to such Acquiring Person and receives such Rights (I) with actual knowledge that the transferor is or was an Acquiring Person or (II) pursuant to either (x) a transfer (whether or not for consideration) from the Acquiring Person to holders of equity interests in such Acquiring Person or to any Person with whom the Acquiring Person has any continuing agreement, arrangement or understanding regarding the transferred Rights or (y) a transfer which the Board determines in good faith is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 6(e), shall become null and void without any further action, and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under this Rights Plan or otherwise. The Company shall use all reasonable efforts to insure that the provisions of this Section 6(e) are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or any transferee of an Acquiring Person hereunder. If a Person in Specified Person Group II is an Acquiring Person, any references to “Rights Beneficially Owned” by such Acquiring Person shall exclude any Rights held by each Person in Specified Person Group I; provided that the Persons in Specified Person Group I are Grandfathered Persons or have failed to be Grandfathered Persons solely as a result of one or more In-Kind Distributions. For the avoidance of doubt, each security that is a Covered Security, share of Investor Preferred Stock, Additional Share or Warrant (each within the meaning of the Specified Exchange Agreement) shall not be subject to dilution under this Rights Plan, and the Rights related thereto shall be exercisable, so long as (A) the Persons in Specified Person Group I are Grandfathered Persons (or have failed to be Grandfathered Persons solely as a result of one or more In-Kind Distributions) and (B) a Person in Specified Person Group I has continuously since the Specified Exchange Closing Date (I) had legal title to such security (or a predecessor security that had, pursuant to its terms, been converted or exchanged into such security), (II) been the registered or record owner of such security (or a predecessor security that had, pursuant to its terms, been converted or exchanged into such security), or (III) held such security (or a predecessor security that had, pursuant to its terms, been converted or exchanged into such security) through one or more custodians, depositaries, broker-dealer firms and/or other similar intermediaries.
(f) Notwithstanding anything in this Rights Plan to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a any purported transfer pursuant to Section 5 or exercise pursuant to this Section 6 unless the registered holder of the applicable Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless (i) shall have completed and signed the certificate contained in the form of assignment or election to purchase purchase, as the case may be, set forth on the reverse side of the Rights Right Certificate surrendered for such exercise transfer or exercise, as the case may be, (ii) shall not have indicated an affirmative response to clause 1 or 2 thereof and (iii) shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall reasonably request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Samples: Exchange Agreement (Citigroup Inc)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent, along with a signature guarantee and such other and further documentation as the Rights Agent designated for such purposemay reasonably request, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares Shares, other securities, cash and/or other securitiesproperty in accordance with the provisions of this Agreement).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars $16.00 ($50.00Sixteen dollars) and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other propertyproperty in accordance with the provisions of this Agreement) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event Event, any Rights that are or were Beneficially Owned by a 20% Stockholder Shareholder or any Affiliate or Associate of a 20% Stockholder Shareholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder Shareholder or an Affiliate or Associate of a 20% StockholderShareholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors of the Company shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property property, or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable transfer tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's ’s check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other propertyproperty in accordance with the provisions of this Agreement), certificates for the number of Preferred Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreementappropriate, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreementappropriate, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's ’s duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the The registered holder of any Right Certificate may exercise the Rights represented evidenced thereby (except as otherwise provided herein, including Sections 6(e), 6(f) and 8(c)) in whole or in part at any time after a Distribution Date and prior to the Expiration Date upon surrender of such the Right Certificate, with the form of election to purchase, including certificate, purchase and the certificate on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the principal office or offices of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money of the United States of America by certified check or bank draft payable in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event immediately available or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement next day funds to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities order of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Purchase Price equal with respect to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right Rights then to be exercised and an amount equal to any applicable transfer tax or other governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order charge.
(b) Upon satisfaction of the Companyrequirements of Section 6(a) and subject to Section 17(k), the Rights Agent shall thereupon promptly (ii)(A) requisition from the any transfer agent of the Preferred Shares Stock (oror make available, following if the occurrence of a Section 11(a)(iiRights Agent is the transfer agent therefor) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the total number of one one-millionths of a share of Preferred Shares (or such other securities) Stock to be purchased, purchased (and the Company hereby irrevocably authorizes such its transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof) or (B) if the Company shall have elected to deposit the shares of Preferred Stock issuable upon exercise of the Rights with a depositary agent, requisition from the depositary agent described therein depositary receipts representing interests in such number of one one-hundredths millionths of a share of Preferred Share (or such other securities) as are Stock to be purchased (in which case certificates for the shares of Preferred Shares (or such other securities) Stock represented by such receipts shall be deposited by the transfer agent with such the depositary agent) agent and the Company hereby directs such will direct the depositary agent to comply with such request), (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash cash, if any, to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) shares in accordance with Section 14 hereof, 11 and (iii) after receipt of such certificates, certificates or depositary receipts or and cash, if any, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate (with such certificates or receipts registered in such name or names as may be designated by such holder). If the Company is obligated to deliver Common Stock or other securities or assets pursuant to this Plan, the Company will make all arrangements necessary so that such securities and assets are available for delivery by the Rights Agent, if and when appropriate.
(c) Each Person (other than the Company) in whose name any certificate for Preferred Stock is issued upon the exercise of Rights shall for all purposes be deemed to have become the holder of record of such Preferred Stock represented thereby on, and such certificate shall be dated, the date upon which the Right Certificate evidencing such Rights was duly surrendered and payment of the Purchase Price (and any transfer taxes or other governmental charges) was made; provided that if the date of such surrender and payment is a date upon which the transfer books of the Company relating to the Preferred Stock are closed, such Person shall be deemed to have become the record holder of such shares on, and such certificate shall be dated, the next succeeding Business Day on which the applicable transfer books of the Company are open. Prior to the exercise of the Rights evidenced thereby, the holder of a Right Certificate shall not be entitled to any rights of a stockholder of the Company with respect to shares for which the Rights shall be exercisable, including the right to vote, to receive dividends or other distributions or to exercise any preemptive rights, and shall not be entitled to receive any notice of any proceedings of the Company except as provided herein.
(d) In case the registered holder of any Right Certificate shall exercise less than all the Rights evidenced thereby, a new Right Certificate evidencing the number of Rights remaining unexercised shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof11.
(ie) Notwithstanding anything in this Agreement Plan to the contrary, any Rights Beneficially Owned by (i) an Acquiring Person from and after the date on which the Acquiring Person becomes such or (ii) a transferee of Rights Beneficially Owned by an Acquiring Person who (A) becomes a transferee after the Stock Acquisition Date with respect to such Acquiring Person or (B) becomes a transferee prior to or concurrently with the Stock Acquisition Date with respect to such Acquiring Person and, in either case, receives such Rights (I) with actual knowledge that the transferor is or was an Acquiring Person or (II) pursuant to either (x) a transfer (whether or not for consideration) from the Acquiring Person to holders of equity interests in such Acquiring Person or to any Person with whom the Acquiring Person has any continuing agreement, arrangement or understanding regarding the transferred Rights or (y) a transfer which the Board determines in good faith is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 6(e), shall become null and void without any further action, and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under this Plan or otherwise. The Company shall use all reasonable efforts to insure that the provisions of this Section 6(e) are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or any transferee of an Acquiring Person hereunder. The Company shall be entitled to rely on certifications made in the Form of Assignment contained on the reverse side of the Right Certificate, and such reliance shall be deemed conclusive of its use of reasonable efforts as contemplated in this Section 6(e).
(f) Notwithstanding anything in this Plan to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a any purported transfer pursuant to Section 5 or exercise pursuant to this Section 6 unless the registered holder of the applicable Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless (i) shall have completed and signed the certificate contained in the form of assignment or election to purchase purchase, as the case may be, set forth on the reverse side of the Rights Right Certificate surrendered for such exercise transfer or exercise, as the case may be, (ii) shall not have indicated an affirmative response to clause 1 or 2 thereof and (iii) shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall reasonably request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Samples: Tax Benefits Preservation Plan (Triad Guaranty Inc)
Exercise of Rights. (a) Until the Distribution Date, no Right may 5.1 Unless an Event of Default shall have occurred and be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Datecontinuing, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right Chargor shall be entitled to receivereceive all income derived from the Mortgaged Securities and to exercise all rights attaching to any part thereof as he may think fit, subject but shall deliver to adjustment as provided hereinthe 212 Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd. Facility : Term Loan Facility of RM91,000,000.00 Agent forthwith upon receipt copies of all notices, one one-hundredth reports, accounts and circulars issued to the registered holders of a Preferred Share the Mortgaged Securities (orunless the Agent or its nominee is the registered holder).
5.2 The Chargor will procure that, following the occurrence of a Section 11(a)(ii) any Event or a Section 13(a) Eventof Default and whilst any Event of Default is continuing, Common Shares and/or other securities).
(c) The Exercise Price for all income derived from the exercise of each Right shall initially be fifty dollars ($50.00) and Mortgaged Securities shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event paid to or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order of the CompanyAgent, (and if received by the Chargor, the Rights Agent Chargor shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the number of Preferred Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause forthwith pay the same to the Agent) and any such income received by the Agent shall be delivered retained by the Agent in a cash collateral deposit account maintained for that purpose until:-
(a) the Event of Default shall have been remedied to or upon the order satisfaction of the registered holder Agent whereupon any such income shall subject to no other Event of such Right CertificateDefault having occurred and be continuing and if the Agent and the Lenders so agrees, registered be released to the Chargor;
(b) payments in such name or names as may be designated full by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order Chargor of the registered holder of such Right Certificate.Indebtedness; or
(gc) Notwithstanding the foregoing provisions of this Section 7, the exercisability recall and or termination of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued Facility pursuant to the exercise terms of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights AgentLoan Documents.
(h) In case the registered holder of 5.3 The security constituted by this Memorandum and any Right Certificate further or other security constituted pursuant hereto, shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon become enforceable immediately on the occurrence of any purported exercise as set forth in this Section 7 unless Event of Default, and the certificate contained Agent shall be entitled then, and at any time thereafter, and without prior notice to the Chargor to sell or otherwise dispose of all the Chargor's title to and interest in the form Mortgaged Securities for such consideration (which may comprise or include shares or debentures), upon such terms and generally in such manner as the Agent may, in its absolute discretion think fit and so that the Agent shall be entitled as against the Chargor, to retain and apply the proceeds of election any sale or disposal and all and any amounts then standing to purchase set forth on the reverse side credit of any cash collateral deposit account pursuant to Clause 5.2 above, in or towards the discharge of the Rights Certificate surrendered Indebtedness as the same fall due, in such manner as the Agent may in its absolute discretion think fit (and for that purpose to effect any currency conversion that the Agent may consider appropriate) with any surplus being paid to the Chargor or other person entitled thereto. The Agent shall not be liable for any loss howsoever arising out of such sale. 213 Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd. Facility : Term Loan Facility of RM91,000,000.00
5.4 The rights, powers and authorities of the Agent pursuant to the Power of Attorney hereunder shall be in addition to, and shall not in any way prejudice or affect the rights and powers of the Agent under this Memorandum; notwithstanding any other provision herein contained the Agent and or any substitute or agent of the Agent under the said Power of Attorney may at any time prior to the discharge of all moneys hereby secured without notice to the Chargor transfer the Mortgaged Securities into the name of the Agent or its nominees and the Chargor shall upon demand and at the Chargor's cost execute and do all such transfers acts assurances or things as the Agent may require for assuring and vesting the full legal title in the Mortgaged Securities or any of them to and in the name(s) of the Agent or its nominees PROVIDED ALWAYS that save as aforesaid and as is otherwise stated herein neither the Agent nor any of its substitutes or agents under the Power of Attorney will exercise shall have been duly completed and signed any of the other rights, powers or authorities conferred by the registered holder thereof an the Company said Power of Attorney (other than powers of substitution and appointment of agents and the Rights Agent shall have been provided with such additional evidence powers conferred in paragraph (o) of Clause 3.1 of the identity said Power of Attorney) unless and until an Event of Default has occurred, whereupon and whereafter the Beneficial Owner Agent (or former Beneficial Ownerits substitute or agent) or Affiliates or Associates thereof shall be entitled to exercise all and any such rights, powers and authorities as the Company or the Rights Agent shall requestit may in its absolute discretion think fit.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Samples: Loan Agreement (International Wireless Communications Holdings Inc)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d7(e), Section 23(b) and Section 24(a), the registered holder of any Rights Certificate may exercise the Rights evidenced thereby (gexcept as otherwise provided herein) hereof and the other provisions of this Agreement, in whole or in part on any Business Day at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Expiration Date or the Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right the Rights Certificate, with the form of election to purchase, including certificate, purchase and the certificate on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office or offices of the Rights Agent designated for such purpose, together with payment of the Exercise aggregate Purchase Price for each Right the total number of one one-thousandths of a share of Preferred Stock (or other securities, cash or other assets, as the case may be) as to which such surrendered Rights are then exercised. Upon , at or prior to the exercise earliest of an exercisable Right and payment (i) the Close of Business on October 22, 2022 (the “Final Expiration Date”), (ii) the time at which the Rights are redeemed as provided in Section 23 (the “Redemption Date”), (iii) the time at which such Rights are exchanged as provided in Section 24 (the “Exchange Date”), (iv) the final adjournment of the Exercise Price Company’s 2020 annual meeting of stockholders if the stockholders fail to approve this Agreement with an affirmative vote of a majority of the votes cast by holders of shares of Common Stock at the 2020 annual meeting of stockholders (or any adjournment or postponement thereof), (v) the repeal of Section 382 of the Code or any successor statute if the Board of Directors determines that this Plan is no longer necessary for the preservation of Tax Benefits, (vi) the beginning of a taxable year of the Company with respect to which the Board of Directors determines that no Tax Benefits may be carried forward, or (vii) such time as the Board of Directors determines that a limitation on the use of the Tax Benefits under Section 382 of the Code would no longer be material to the Company (the earliest of (i), through (vii) being herein referred to as the “Expiration Date”). The Board of Directors shall at least annually consider whether to make the determination provided by Section 7(a)(vii) in light of all relevant factors, including, in particular, the amount and anticipated utilization of the Company’s Tax Benefits and the Company’s market capitalization. The Company shall promptly notify the Rights Agent in writing upon the occurrence of the Expiration Date and, if such notification is given orally, the Company shall confirm same in writing on or prior to the Business Day next following. Until such notice is received by the Rights Agent, the Rights Agent may presume conclusively for all purposes, prior to the Close of Business on October 22, 2022, that the Expiration Date has not occurred. Except as set forth in Section 7(e) and notwithstanding any other provision of this Agreement, any Person who prior to the Distribution Date becomes a record holder of shares of Common Stock of the Company is entitled to all of the rights of a registered holder of a Rights Certificate with respect to the Rights associated with such shares of Common Stock of the Company in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by such Person becomes a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any record holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate shares of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities Common Stock of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the number of Preferred Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Samples: Tax Benefits Preservation Rights Agreement (Impac Mortgage Holdings Inc)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent, along with a signature guarantee and such other and further documentation as the Rights Agent designated for such purposemay reasonably request, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares Shares, other securities, cash and/or other securitiesproperty in accordance with the provisions of this Agreement).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars $40.00 ($50.00Forty dollars) and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other propertyproperty in accordance with the provisions of this Agreement) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event Event, any Rights that are or were Beneficially Owned by a 20% Stockholder Shareholder or any Affiliate or Associate of a 20% Stockholder Shareholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder Shareholder or an Affiliate or Associate of a 20% StockholderShareholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors of the Company shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property property, or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable transfer tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's ’s check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other propertyproperty in accordance with the provisions of this Agreement), certificates for the number of Preferred Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreementappropriate, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreementappropriate, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's ’s duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the The registered holder of any Right Certificate may exercise the Rights represented evidenced thereby (except as otherwise provided herein, including Sections 6(e), 6(f) and 8(c)) in whole or in part at any time after a Distribution Date and prior to the Expiration Date upon surrender of such the Right Certificate, with the form of election to purchase, including certificate, purchase and the certificate on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the principal office or offices of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money of the United States of America by certified check or bank draft payable in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event immediately available or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement next day funds to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities order of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Purchase Price equal with respect to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right Rights then to be exercised and an amount equal to any applicable transfer tax or other governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order charge.
(b) Upon satisfaction of the Companyrequirements of Section 6(a) and subject to Section 17(k), the Rights Agent shall thereupon promptly promptly
(iA) requisition from the any transfer agent of the Preferred Shares Stock (oror make available, following if the occurrence of a Section 11(a)(iiRights Agent is the transfer agent therefor) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the total number of one one-thousandths of a share of Preferred Shares (or such other securities) Stock to be purchased, purchased (and the Company hereby irrevocably authorizes such its transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof) or
(B) if the Company shall have elected to deposit the shares of Preferred Stock issuable upon exercise of the Rights with a depositary agent, requisition from the depositary agent described therein depositary receipts representing interests in such number of one one-hundredths thousandths of a share of Preferred Share (or such other securities) as are Stock to be purchased (in which case certificates for the shares of Preferred Shares (or such other securities) Stock represented by such receipts shall be deposited by the transfer agent with such the depositary agent) agent and the Company hereby directs such will direct the depositary agent to comply with such request, ),
(ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash cash, if any, to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) shares in accordance with Section 14 hereof, 11 and
(iii) after receipt of such certificates, certificates or depositary receipts or and cash, if any, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate (with such certificates or receipts registered in such name or names as may be designated by such holder). If the Company is obligated to deliver Common Stock or other securities or assets pursuant to this Plan, the Company will make all arrangements necessary so that such securities and assets are available for delivery by the Rights Agent, if and when appropriate.
(c) Each Person (other than the Company) in whose name any certificate for Preferred Stock is issued upon the exercise of Rights shall for all purposes be deemed to have become the holder of record of such Preferred Stock represented thereby on, and such certificate shall be dated, the date upon which the Right Certificate evidencing such Rights was duly surrendered and payment of the Purchase Price (and any transfer taxes or other governmental charges) was made; provided that if the date of such surrender and payment is a date upon which the transfer books of the Company relating to the Preferred Stock are closed, such Person shall be deemed to have become the record holder of such shares on, and such certificate shall be dated, the next succeeding Business Day on which the applicable transfer books of the Company are open. Prior to the exercise of the Rights evidenced thereby, the holder of a Right Certificate shall not be entitled to any rights of a shareholder of the Company with respect to shares for which the Rights shall be exercisable, including the right to vote, to receive dividends or other distributions or to exercise any preemptive rights, and shall not be entitled to receive any notice of any proceedings of the Company except as provided herein.
(d) In case the registered holder of any Right Certificate shall exercise less than all the Rights evidenced thereby, a new Right Certificate evidencing the number of Rights remaining unexercised shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof12.
(ie) Notwithstanding anything in this Agreement Plan to the contrary, any Rights Beneficially Owned by
(i) an Acquiring Person from and after the date on which the Acquiring Person becomes such, or
(ii) a transferee of Rights Beneficially Owned by an Acquiring Person who
(A) becomes a transferee after the Stock Acquisition Date with respect to such Acquiring Person, or
(B) becomes a transferee prior to or concurrently with the Stock Acquisition Date with respect to such Acquiring Person and receives such Rights
(I) with actual knowledge that the transferor is or was an Acquiring Person, or
(II) pursuant to either (x) a transfer (whether or not for consideration) from the Acquiring Person to holders of equity interests in such Acquiring Person or to any Person with whom the Acquiring Person has any continuing agreement, arrangement or understanding regarding the transferred Rights or (y) a transfer which the Board determines in good faith is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 6(e), shall become null and void without any further action, and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under this Plan or otherwise. The Company shall use all reasonable efforts to insure that the provisions of this Section 6(e) are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or any transferee of an Acquiring Person hereunder.
(f) Notwithstanding anything in this Plan to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a any purported transfer pursuant to Section 5 or exercise pursuant to this Section 6 unless the registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless applicable Rights
(i) has completed and signed the certificate contained in the form of assignment or election to purchase purchase, as the case may be, set forth on the reverse side of the Rights Right Certificate surrendered for such exercise shall have been duly completed and signed by transfer or exercise, as the registered holder thereof case may be,
(ii) has not indicated an affirmative response to clause (1) or (2) of the Company and the Rights Agent shall have been above-referenced certificate, and
(iii) has provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall requestreasonably requests.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Samples: Tax Benefits Preservation Plan (Porter Bancorp, Inc.)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the The registered holder of any Right Certificate may exercise the Rights represented evidenced thereby (except as otherwise provided herein, including Sections 6(e), 6(f), and 9(a)) in whole or in part at any time after the Distribution Date and prior to the Expiration Date upon surrender of such the Right Certificate, with the form of election to purchase, including certificate, purchase and the certificate on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the principal office or offices of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money of the United States of America by cash or certified check or bank draft or money order payable in accordance with Section 7(fimmediately available or next day funds to the order of the Company) hereof. The Exercise of the aggregate Purchase Price and for the total number of Preferred Shares (or, following the occurrence one one-thousandths of a Section 11(a)(ii) Event share of Preferred Stock (or a Section 13(a) Event, Common Shares, other securities, cash and/or or other propertyassets, as the case may be) as to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any which such surrendered Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing then exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable transfer tax or other governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order charge.
(b) Upon satisfaction of the Companyrequirements of Section 6(a) and subject to Section 18(k), the Rights Agent shall thereupon promptly (i) either (A) requisition from the any transfer agent of the Preferred Shares Stock (oror make available, following if the occurrence Rights Agent is the transfer agent therefor) certificates (or make a Book Entry) for the total number of one one-thousandths of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the number share of Preferred Shares (or such other securities) Stock to be purchased, purchased and the Company hereby irrevocably authorizes such its transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof) or (B) if the Company shall have elected to deposit the shares of Preferred Stock issuable upon exercise of the Rights with a depositary agent, requisition from the depositary agent described therein depositary receipts representing interests in such number of one one-hundredths thousandths of a share of Preferred Share (or such other securities) as are Stock to be purchased (in which case certificates for the shares of one one-thousandths of a share of Preferred Shares (or such other securities) Stock represented by such receipts shall be deposited by the transfer agent with such the depositary agent) agent and the Company hereby directs each such depositary agent to comply with such request), (ii) when necessary to comply with this AgreementRights Agreement or otherwise when appropriate, as determined by the Company with notice to the Rights Agent, requisition from the Company the amount of cash cash, if any, to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) shares in accordance with Section 14 hereofSection 12, (iii) after receipt of such certificates, certificates or depositary receipts (or cash, confirmations or written notices that a Book Entry has been made) cause the same to be delivered to or upon the order of the registered holder of such Right Certificate (with such certificates or receipts registered in such name or names as may be designated by such holder), and (iv) when necessary to comply with this Rights Agreement (or otherwise when appropriate as determined by the Company with notice to the Rights Agent), after receipt thereof, deliver such cash referred to in (ii) above to or upon the order of the registered holder of such Right Certificate. If the Company is obligated to deliver Common Stock or other securities, pay cash and/or distribute other property pursuant to this Rights Agreement, the Company will make all arrangements necessary so that such securities, cash and or/other property are available for delivery by the Rights Agent, if and when necessary to comply with this Rights Agreement.
(c) Each Person (other than the Company) in whose name any certificate (or Book Entry) for a number of one one-thousandths of a share of Preferred Stock (or Common Stock and/or other securities, as the case may be) is issued upon the exercise of Rights shall for all purposes be deemed to have become the holder of record of such one one-thousandth of a share of Preferred Stock (or Common Stock and/or other securities, as the case may be) represented thereby on, and such certificate or Book Entry shall be dated, the date upon which the Right Certificate evidencing such Rights was duly surrendered and payment of the Purchase Price (and any transfer taxes or other governmental charges) was made; provided that if the date of such surrender and payment is a date upon which the transfer books of the Company relating to the one one-thousandths of a share of Preferred Stock (or Common Stock and/or other securities, as the case may be) are closed, such Person shall be deemed to have become the record holder of such shares on, and such certificate or Book Entry shall be dated, the next succeeding Business Day on which the applicable transfer books of the Company are open. Prior to the exercise of the Rights evidenced thereby, the holder of a Right Certificate shall not be entitled to any rights of a stockholder of the Company with respect to shares for which the Rights shall be exercisable, including the right to vote, to receive dividends or other distributions or to exercise any preemptive rights, and shall not be entitled to receive any notice of any proceedings of the Company except as provided herein.
(d) In case the registered holder of any Right Certificate shall exercise less than all the Rights evidenced thereby, a new Right Certificate evidencing the number of Rights remaining unexercised shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereofSection 12.
(ie) Notwithstanding anything in this Rights Agreement to the contrary, from and after the first occurrence of a Section 9(a)(ii) Event, any Rights Beneficially Owned by (i) an Acquiring Person or an Associate or Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person (or of any such Associate or Affiliate of an Acquiring Person) who becomes a transferee after a Section 9(a)(ii) Event (a “Post-Transferee”), (iii) a transferee of an Acquiring Person (or of any such Associate or Affiliate of an Acquiring Person) who becomes a transferee prior to or concurrently with a Section 9(a)(ii) Event and receives such Rights pursuant to either (x) a transfer (whether or not for consideration) from the Acquiring Person (or any such Associate or Affiliate) to holders of equity interests in such Acquiring Person (or in any such Associate or Affiliate) or to any Person with whom the Acquiring Person (or any such Associate or Affiliate) has any continuing agreement, arrangement or understanding regarding the transferred Rights or (y) a transfer which the Board determines is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 6(e) (a “Pre-Transferee”), or (iv) any subsequent transferee receiving transferred Rights from a Post-Transferee or Pre-Transferee, either directly or through one or more intermediate transferees, shall in each of the cases (i) to (iv) above become null and void without any further action, and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under this Rights Agreement or otherwise. Neither the Company nor the Rights Agent shall have any liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its Affiliates and Associates or any transferee of any of them hereunder. The Company shall give the Rights Agent written notice of the identity of any Acquiring Person, Associate of an Acquiring Person or Affiliate of an Acquiring Person known to it, or the nominee of the foregoing, and the Rights Agent may rely on such notice in carrying out its duties under this Rights Agreement and shall be deemed not to have any knowledge of the identity of such Acquiring Person, Associate or Affiliate or the nominee of the foregoing unless and until it has received notice.
(f) Notwithstanding anything in this Rights Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a any purported transfer, split up, combination or exchange pursuant to Section 5 or exercise pursuant to this Section 6 unless the registered holder of the applicable Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless (i) shall have properly completed and duly signed the certificate (including the certification regarding the identity of the Beneficial Owner) contained in the form of assignment or election to purchase purchase, as the case may be, set forth on the reverse side of the Rights Right Certificate surrendered for such exercise transfer or exercise, as the case may be and (ii) shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) of the Rights evidenced thereby or Affiliates or Associates thereof as the Company or the Rights Agent shall reasonably request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the The registered holder of any Right Certificate may exercise the Rights represented evidenced thereby (except as otherwise provided herein, including Sections 6(e), 6(f), 8(c) and 9(a)) in whole or in part at any time after the Distribution Date and prior to the Expiration Date upon surrender of such the Right Certificate, with the form of election to purchase, including certificate, purchase and the certificate on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the principal office or offices of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money of the United States of America by certified check or bank draft payable in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event immediately available or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement next day funds to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities order of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Purchase Price equal with respect to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right Rights then to be exercised and an amount equal to any applicable transfer tax or other governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order charge.
(b) Upon satisfaction of the Companyrequirements of Section 6(a) and subject to Section 18(k), the Rights Agent shall thereupon promptly (i) (A) requisition from the any transfer agent of the Preferred Shares Stock (oror make available, following if the occurrence of a Section 11(a)(iiRights Agent is the transfer agent therefor) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the total number of one one-hundredths of a share of Preferred Shares (or such other securities) Stock to be purchased, purchased (and the Company hereby irrevocably authorizes such its transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof) or (B) if the Company shall have elected to deposit the shares of Preferred Stock issuable upon exercise of the Rights with a depositary agent, requisition from the depositary agent described therein depositary receipts representing interests in such number of one one-hundredths of a share of Preferred Share (or such other securities) as are Stock to be purchased (in which case certificates for the shares of Preferred Shares (or such other securities) Stock represented by such receipts shall be deposited by the transfer agent with such the depositary agent) agent and the Company hereby directs such will direct the depositary agent to comply with such request), (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash cash, if any, to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) shares in accordance with Section 14 hereof, 12 and (iii) after receipt of such certificates, certificates or depositary receipts or and cash, if any, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate (with such certificates or receipts registered in such name or names as may be designated by such holder). If the Company is obligated to deliver Common Stock or other securities or assets pursuant to this Agreement, the Company will make all arrangements necessary so that such securities and assets are available for delivery by the Rights Agent, if and when appropriate.
(c) Each Person (other than the Company) in whose name any certificate for Preferred Stock is issued upon the exercise of Rights shall for all purposes be deemed to have become the holder of record of such Preferred Stock represented thereby on, and such certificate shall be dated, the date upon which the Right Certificate evidencing such Rights was duly surrendered and payment of the Purchase Price (and any transfer taxes or other governmental charges) was made; provided that if the date of such surrender and payment is a date upon which the transfer books of the Company relating to the Preferred Stock are closed, such Person shall be deemed to have become the record holder of such shares on, and such certificate shall be dated, the next succeeding Business Day on which the applicable transfer books of the Company are open. Prior to the exercise of the Rights evidenced thereby, the holder of a Right Certificate shall not be entitled to any rights of a stockholder of the Company with respect to shares for which the Rights shall be exercisable, including the right to vote, to receive dividends or other distributions or to exercise any preemptive rights, and shall not be entitled to receive any notice of any proceedings of the Company except as provided herein.
(d) In case the registered holder of any Right Certificate shall exercise less than all the Rights evidenced thereby, a new Right Certificate evidencing the number of Rights remaining unexercised shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof12.
(e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 9(a)(ii) Event, any Rights Beneficially Owned by (i) an Acquiring Person or an Associate or Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person (or of any such Associate or Affiliate of an Acquiring Person) who (A) becomes a transferee after a Section 9(a)(ii) Event, (B) becomes a transferee prior to or concurrently with a Section 9(a)(ii) Event and receives such Rights pursuant to either (1) a transfer (whether or not for consideration) from the Acquiring Person (or any such Associate or Affiliate) to holders of equity interests in such Acquiring Person (or in any such Associate or Affiliate) or to any Person with whom the Acquiring Person (or any such Associate or Affiliate) has any continuing agreement, arrangement or understanding regarding the transferred Rights or (2) a transfer which the Board determines in good faith is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 6(e), shall become null and void without any further action, and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under this Agreement or otherwise. The Company shall use all reasonable efforts to insure that the provisions of this Section 6(e) are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its Affiliates and Associates or any transferee of any of them hereunder.
(f) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a any purported transfer pursuant to Section 5 or exercise pursuant to this Section 6 unless the registered holder of the applicable Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless (i) shall have completed and signed the certificate contained in the form of assignment or election to purchase purchase, as the case may be, set forth on the reverse side of the Rights Right Certificate surrendered for such exercise transfer or exercise, as the case may be, (ii) shall not have indicated an affirmative response to clause 1 or 2 thereof and (iii) shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall reasonably request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Samples: Rights Agreement (IHS Inc.)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the The registered holder of any Right Certificate may exercise the Rights represented evidenced thereby (except as otherwise provided herein, including Sections 5(e), 5(f), 7(c), and 8(a)) in whole or in part at any time after the Distribution Date and prior to the Expiration Date upon surrender of such the Right Certificate, with the form of election to purchase, including certificate, purchase and the certificate on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the principal office or offices of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money of the United States of America by certified check or bank draft payable in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event immediately available or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement next day funds to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities order of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Purchase Price equal with respect to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right Rights then to be exercised and an amount equal to any applicable transfer tax or other governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order charge.
(b) Upon satisfaction of the Companyrequirements of Section 5(a) and subject to Section 17(k), the Rights Agent shall thereupon promptly (i)
(A) requisition from the any transfer agent of the Preferred Shares Stock (oror make available, following if the occurrence of a Section 11(a)(iiRights Agent is the transfer agent therefor) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the total number of one one-hundredths of a share of Preferred Shares (or such other securities) Stock to be purchased, purchased (and the Company hereby irrevocably authorizes such its transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof) or (B) if the Company shall have elected to deposit the shares of Preferred Stock issuable upon exercise of the Rights with a depositary agent, requisition from the depositary agent described therein depositary receipts representing interests in such number of one one-hundredths of a share of Preferred Share (or such other securities) as are Stock to be purchased (in which case certificates for the shares of Preferred Shares (or such other securities) Stock represented by such receipts shall be deposited by the transfer agent with such the depositary agent) agent and the Company hereby directs such will direct the depositary agent to comply with such request), (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash cash, if any, to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) shares in accordance with Section 14 hereof, 11 and (iii) after receipt of such certificates, certificates or depositary receipts or and cash, if any, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate (with such certificates or receipts registered in such name or names as may be designated by such holder). If the Company is obligated to deliver Common Stock or other securities or assets pursuant to this Agreement, the Company will make all arrangements necessary so that such securities and assets are available for delivery by the Rights Agent, if and when appropriate.
(c) Each Person (other than the Company) in whose name any certificate for Preferred Stock is issued upon the exercise of Rights shall for all purposes be deemed to have become the holder of record of such Preferred Stock represented thereby on, and such certificate shall be dated, the date upon which the Right Certificate evidencing such Rights was duly surrendered and payment of the Purchase Price (and any transfer taxes or other governmental charges) was made; provided that if the date of such surrender and payment is a date upon which the transfer books of the Company relating to the Preferred Stock are closed, such Person shall be deemed to have become the record holder of such shares on, and such certificate shall be dated, the next succeeding Business Day on which the applicable transfer books of the Company are open. Prior to the exercise of the Rights evidenced thereby, the holder of a Right Certificate shall not be entitled to any rights of a stockholder of the Company with respect to shares for which the Rights shall be exercisable, including the right to vote, to receive dividends or other distributions or to exercise any preemptive rights, and shall not be entitled to receive any notice of any proceedings of the Company except as provided herein.
(d) In case the registered holder of any Right Certificate shall exercise less than all the Rights evidenced thereby, a new Right Certificate evidencing the number of Rights remaining unexercised shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof11.
(e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 8(a)(ii) Event, any Rights Beneficially Owned by (i) an Acquiring Person or an Associate or Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person (or of any such Associate or Affiliate of an Acquiring Person) who (A) becomes a transferee after a Section 8(a)(ii) Event, (B) becomes a transferee prior to or concurrently with a Section 8(a)(ii) Event and receives such Rights pursuant to either (1) a transfer (whether or not for consideration) from the Acquiring Person (or any such Associate or Affiliate) to holders of equity interests in such Acquiring Person (or in any such Associate or Affiliate) or to any Person with whom the Acquiring Person (or any such Associate or Affiliate) has any continuing agreement, arrangement or understanding regarding the transferred Rights or (2) a transfer which the Board has determined in good faith is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 5(e), shall become null and void without any further action, and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under this Agreement or otherwise. The Company shall use all reasonable efforts to insure that the provisions of this Section 5(e) are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its Affiliates and Associates or any transferee of any of them hereunder.
(f) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a any purported transfer pursuant to Section 4 or exercise pursuant to this Section 5 unless the registered holder of the applicable Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless (i) shall have completed and signed the certificate contained in the form of assignment or election to purchase purchase, as the case may be, set forth on the reverse side of the Rights Right Certificate surrendered for such exercise transfer or exercise, as the case may be, (ii) shall not have indicated an affirmative response to clause 1 or 2 thereof and (iii) shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall reasonably request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the The registered holder of any Right Certificate may exercise the Rights represented evidenced thereby (except as otherwise provided herein, including Sections 5(e), 5(f), 7(c), and 8(a)) in whole or in part at any time after the Distribution Date and prior to the Expiration Date upon surrender of such the Right Certificate, with the form of election to purchase, including certificate, purchase and the certificate on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the principal office or offices of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money of the United States of America by certified check or bank draft payable in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event immediately available or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement next day funds to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities order of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Purchase Price equal with respect to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right Rights then to be exercised and an amount equal to any applicable transfer tax or other governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order charge.
(b) Upon satisfaction of the Companyrequirements of Section 5(a) and subject to Section 17(k), the Rights Agent shall thereupon promptly (i) (A) requisition from the any transfer agent of the Preferred Shares Stock (oror make available, following if the occurrence of a Section 11(a)(iiRights Agent is the transfer agent therefor) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the total number of one one-hundredths of a share of Preferred Shares (or such other securities) Stock to be purchased, purchased (and the Company hereby irrevocably authorizes such its transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof) or (B) if the Company shall have elected to deposit the shares of Preferred Stock issuable upon exercise of the Rights with a depositary agent, requisition from the depositary agent described therein depositary receipts representing interests in such number of one one-hundredths of a share of Preferred Share (or such other securities) as are Stock to be purchased (in which case certificates for the shares of Preferred Shares (or such other securities) Stock represented by such receipts shall be deposited by the transfer agent with such the depositary agent) agent and the Company hereby directs such will direct the depositary agent to comply with such request), (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash cash, if any, to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) shares in accordance with Section 14 hereof, 11 and (iii) after receipt of such certificates, certificates or depositary receipts or and cash, if any, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate (with such certificates or receipts registered in such name or names as may be designated by such holder). If the Company is obligated to deliver Common Stock or other securities or assets pursuant to this Agreement, the Company will make all arrangements necessary so that such securities and assets are available for delivery by the Rights Agent, if and when appropriate.
(c) Each Person (other than the Company) in whose name any certificate for Preferred Stock is issued upon the exercise of Rights shall for all purposes be deemed to have become the holder of record of such Preferred Stock represented thereby on, and such certificate shall be dated, the date upon which the Right Certificate evidencing such Rights was duly surrendered and payment of the Purchase Price (and any transfer taxes or other governmental charges) was made; provided that if the date of such surrender and payment is a date upon which the transfer books of the Company relating to the Preferred Stock are closed, such Person shall be deemed to have become the record holder of such shares on, and such certificate shall be dated, the next succeeding Business Day on which the applicable transfer books of the Company are open. Prior to the exercise of the Rights evidenced thereby, the holder of a Right Certificate shall not be entitled to any rights of a stockholder of the Company with respect to shares for which the Rights shall be exercisable, including the right to vote, to receive dividends or other distributions or to exercise any preemptive rights, and shall not be entitled to receive any notice of any proceedings of the Company except as provided herein.
(d) In case the registered holder of any Right Certificate shall exercise less than all the Rights evidenced thereby, a new Right Certificate evidencing the number of Rights remaining unexercised shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof11.
(e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 8(a)(ii) Event, any Rights Beneficially Owned by (i) an Acquiring Person or an Associate or Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person (or of any such Associate or Affiliate of an Acquiring Person) who (A) becomes a transferee after a Section 8(a)(ii) Event, (B) becomes a transferee prior to or concurrently with a Section 8(a)(ii) Event and receives such Rights pursuant to either (1) a transfer (whether or not for consideration) from the Acquiring Person (or any such Associate or Affiliate) to holders of equity interests in such Acquiring Person (or in any such Associate or Affiliate) or to any Person with whom the Acquiring Person (or any such Associate or Affiliate) has any continuing agreement, arrangement or understanding regarding the transferred Rights or (2) a transfer which the Board has determined in good faith is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 5(e), shall become null and void without any further action, and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under this Agreement or otherwise. The Company shall use all reasonable efforts to insure that the provisions of this Section 5(e) are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its Affiliates and Associates or any transferee of any of them hereunder.
(f) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a any purported transfer pursuant to Section 4 or exercise pursuant to this Section 5 unless the registered holder of the applicable Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless (i) shall have completed and signed the certificate contained in the form of assignment or election to purchase purchase, as the case may be, set forth on the reverse side of the Rights Right Certificate surrendered for such exercise transfer or exercise, as the case may be, (ii) shall not have indicated an affirmative response to clause 1 or 2 thereof and (iii) shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall reasonably request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Rights Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for such purposeat 0 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The “Exercise Price Price” for the exercise of each Right shall initially be fifty dollars ($50.00) 90.00 and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, Shares and/or other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event Event, any Rights that are or were Beneficially Owned by a 2010% Stockholder or any Affiliate or Associate of a 2010% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 2010% Stockholder or an Affiliate or Associate of a 2010% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors of the Company shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, Price (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the number of Preferred Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.,
Appears in 1 contract
Exercise of Rights. (a) Until Subject to paragraph (b) below, the Distribution DateTrustees are hereby authorized to vote upon any stock, no Right may bonds, or other securities of any corporation, association, or trust at any time comprising the Trust fund or otherwise consent to or request any action on the part of such corporation, association, or trust, and to give general or special proxies or powers of attorney, with or without power of substitution, and to participate in reorganizations, recapitalizations, consolidations, mergers, and similar transactions with respect to such securities; to deposit such stocks and other securities in any voting trust, or with any protective or like committee, or with a trustee, or with depositaries designated thereby; and generally to exercise any of the powers of an owner with respect to the stock and other securities and assets comprising the Trust fund which the Trustees deem to be exercisedfor the best interests of the Trust to exercise.
(b) Subject Notwithstanding paragraph (a) above, each Participant shall have the power to Section 7(d) and (g) hereof and the other provisions of this Agreementvote, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Dateotherwise act with respect to, the registered holder of shares in any Right Certificate may exercise Investment Media which are sponsored and/or managed by the Rights represented thereby in whole Company or in part upon surrender any Affiliated Company that are held by the Trustees for the benefit of such Right CertificateParticipant. Such shares shall be voted, or such other action shall be taken with the form of election to purchaserespect thereto, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this AgreementParticipants' instructions except as may otherwise be required by applicable law. To facilitate such right, the holder Trustees shall have delivered to each Participant a copy of all proxies, notices, and other relevant information which are distributed to shareholders of such Right Investment Media generally and the Trustees shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price establish such procedures for the exercise collection of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money of the United States of America in accordance Participants' instructions with Section 7(f) hereof. The Exercise Price respect to voting, or taking action with respect to, such shares and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.timely
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the B. The effective date of items 1, 3, 4 and 5 of Section A above is January 1, 1992, the first Section 11(a)(ii) Event or the effective date of the first item 2 of Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and voidA above is January 1, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the number of Preferred Shares (or such other securities) to be purchased1993, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requestseffective date of item 6 of Section A above is December 1, and/or1992.
C. Said Plan, as provided so amended, is in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such all other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company respects hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificateconfirmed.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Samples: Profit Sharing Retirement Plan and Trust Agreement (Freedom Securities Corp /De/)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the The registered holder of any Right Certificate may exercise the Rights represented evidenced thereby (except as otherwise provided herein, including Sections 5(e), 5(f), 7(c), and 8(a)) in whole or in part at any time after the Distribution Date and prior to the Expiration Date upon surrender of such the Right Certificate, with the form of election to purchase, including certificate, purchase and the certificate on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the principal office or offices of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money of the United States of America by certified check or bank draft payable in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event immediately available or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement next day funds to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities order of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Purchase Price equal with respect to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right Rights then to be exercised and an amount equal to any applicable transfer tax or other governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order charge.
(b) Upon satisfaction of the Companyrequirements of Section 5(a) and subject to Section 17(k), the Rights Agent shall thereupon promptly (i)
(A) requisition from the any transfer agent of the Preferred Shares Stock (oror make available, following if the occurrence of a Section 11(a)(iiRights Agent is the transfer agent therefor) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the total number of one one-thousandths of a share of Preferred Shares (or such other securities) Stock to be purchased, purchased (and the Company hereby irrevocably authorizes such its transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof) or (B) if the Company shall have elected to deposit the shares of Preferred Stock issuable upon exercise of the Rights with a depositary agent, requisition from the depositary agent described therein depositary receipts representing interests in such number of one one-hundredths thousandths of a share of Preferred Share (or such other securities) as are Stock to be purchased (in which case certificates for the shares of Preferred Shares (or such other securities) Stock represented by such receipts shall be deposited by the transfer agent with such the depositary agent) agent and the Company hereby directs such will direct the depositary agent to comply with such request), (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash cash, if any, to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) shares in accordance with Section 14 hereof, 11 and (iii) after receipt of such certificates, certificates or depositary receipts or and cash, if any, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate (with such certificates or receipts registered in such name or names as may be designated by such holder). If the Company is obligated to deliver Common Stock or other securities or assets pursuant to this Agreement, the Company will make all arrangements necessary so that such securities and assets are available for delivery by the Rights Agent, if and when appropriate.
(c) Each Person (other than the Company) in whose name any certificate for Preferred Stock is issued upon the exercise of Rights shall for all purposes be deemed to have become the holder of record of such Preferred Stock represented thereby on, and such certificate shall be dated, the date upon which the Right Certificate evidencing such Rights was duly surrendered and payment of the Purchase Price (and any transfer taxes or other governmental charges) was made; provided that if the date of such surrender and payment is a date upon which the transfer books of the Company relating to the Preferred Stock are closed, such Person shall be deemed to have become the record holder of such shares on, and such certificate shall be dated, the next succeeding Business Day on which the applicable transfer books of the Company are open. Prior to the exercise of the Rights evidenced thereby, the holder of a Right Certificate shall not be entitled to any rights of a stockholder of the Company with respect to shares for which the Rights shall be exercisable, including the right to vote, to receive dividends or other distributions or to exercise any preemptive rights, and shall not be entitled to receive any notice of any proceedings of the Company except as provided herein.
(d) In case the registered holder of any Right Certificate shall exercise less than all the Rights evidenced thereby, a new Right Certificate evidencing the number of Rights remaining unexercised shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof11.
(e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 8(a)(ii) Event, any Rights Beneficially Owned by (i) an Acquiring Person or an Associate or Affiliate of an Acquiring Person or (ii) a transferee of an Acquiring Person (or of any such Associate or Affiliate of an Acquiring Person) who (A) becomes a transferee after a Section 8(a)(ii) Event or (B) becomes a transferee prior to or concurrently with a Section 8(a)(ii) Event and receives such Rights pursuant to either (1) a transfer (whether or not for consideration) from the Acquiring Person (or any such Associate or Affiliate) to holders of equity interests in such Acquiring Person (or in any such Associate or Affiliate) or to any Person with whom the Acquiring Person (or any such Associate or Affiliate) has any continuing agreement, arrangement or understanding regarding the transferred Rights or (2) a transfer which the Board has determined in good faith is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 5(e), shall become null and void without any further action, and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under this Agreement or otherwise. The Company shall use all reasonable efforts to insure that the provisions of this Section 5(e) are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its Affiliates and Associates or any transferee of any of them hereunder.
(f) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a any purported transfer pursuant to Section 4 or exercise pursuant to this Section 5 unless the registered holder of the applicable Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless (i) shall have completed and signed the certificate contained in the form of assignment or election to purchase purchase, as the case may be, set forth on the reverse side of the Rights Right Certificate surrendered for such exercise transfer or exercise, as the case may be, (ii) shall not have indicated an affirmative response to clause 1 or 2 thereof and (iii) shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall reasonably request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Samples: Rights Agreement (At&t Comcast Corp)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d7(e), Section 23(b) and Section 24(a), the registered holder of any Rights Certificate may exercise the Rights evidenced thereby (gexcept as otherwise provided herein) hereof and the other provisions of this Agreement, in whole or in part on any Business Day at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Expiration Date or the Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right the Rights Certificate, with the form of election to purchase, including certificate, purchase and the certificate on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office or offices of the Rights Agent designated for such purpose, together with payment of the Exercise aggregate Purchase Price for each Right the total number of one one-thousandths of a share of Preferred Stock (or other securities, cash or other assets, as the case may be) as to which such surrendered Rights are then exercised. Upon , at or prior to the exercise earliest of an exercisable Right and payment (i) the Close of Business on September 2, 2016 (the “Final Expiration Date”), (ii) the time at which the Rights are redeemed as provided in Section 23 (the “Redemption Date”), (iii) the time at which such Rights are exchanged as provided in Section 24 (the “Exchange Date”), (iv) the final adjournment of the Exercise Price Company’s 2014 annual meeting of stockholders if the stockholders fail to approve this Agreement with an affirmative vote of a majority of the votes cast by holders of shares of Common Stock at the 2014 annual meeting of stockholders (or any adjournment or postponement thereof), (v) the repeal of Section 382 of the Code or any successor statute if the Board of Directors determines that this Plan is no longer necessary for the preservation of Tax Benefits, (vi) the beginning of a taxable year of the Company with respect to which the Board of Directors determines that no Tax Benefits may be carried forward, or (vii) such time as the Board of Directors determines that a limitation on the use of the Tax Benefits under Section 382 of the Code would no longer be material to the Company (the earliest of (i), through (vii) being herein referred to as the “Expiration Date”). The Board of Directors shall at least annually consider whether to make the determination provided by Section 7(a)(vii) in light of all relevant factors, including, in particular, the amount and anticipated utilization of the Company’s Tax Benefits and the Company’s market capitalization. The Company shall promptly notify the Rights Agent in writing upon the occurrence of the Expiration Date and, if such notification is given orally, the Company shall confirm same in writing on or prior to the Business Day next following. Until such notice is received by the Rights Agent, the Rights Agent may presume conclusively for all purposes, prior to the Close of Business on September 3, 2016, that the Expiration Date has not occurred. Except as set forth in Section 7(e) and notwithstanding any other provision of this Agreement, any Person who prior to the Distribution Date becomes a record holder of shares of Common Stock of the Company is entitled to all of the rights of a registered holder of a Rights Certificate with respect to the Rights associated with such shares of Common Stock of the Company in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by such Person becomes a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any record holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate shares of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities Common Stock of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the number of Preferred Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Samples: Tax Benefits Preservation Rights Agreement (Impac Mortgage Holdings Inc)
Exercise of Rights. (a) Until the Distribution Date, no Right may 5.1 Unless an Event of Default shall have occurred and be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Datecontinuing, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right Chargor shall be entitled to receivereceive all income derived from the Mortgaged Securities and to exercise all rights attaching to any part thereof as he may think fit, subject but shall deliver to adjustment as provided hereinthe Agent forthwith upon receipt copies of all notices, one one-hundredth reports, accounts and circulars issued to the registered holders of a Preferred Share the Mortgaged Securities (orunless the Agent or its nominee is the registered holder).
5.2 The Chargor will procure that, following the occurrence of a Section 11(a)(ii) any Event or a Section 13(a) Eventof Default and whilst any Event of Default is continuing, Common Shares and/or other securities).
(c) The Exercise Price for all income derived from the exercise of each Right shall initially be fifty dollars ($50.00) and Mortgaged Securities shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event paid to or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order of the CompanyAgent, (and if received by the Chargor, the Rights Agent Chargor shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the number of Preferred Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause forthwith pay the same to the Agent) and any such income received by the Agent shall be delivered retained by the Agent in a cash collateral deposit account maintained for that purpose until:
(a) the Event of Default shall have been remedied to or upon the order satisfaction of the registered holder Agent whereupon any such income shall subject to no other Event of such Right CertificateDefault having occurred and be continuing and if the Agent and the Lenders so agrees, registered be released to the Chargor;
(b) payments in such name or names as may be designated full by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order Chargor of the registered holder of such Right Certificate.Indebtedness; or
(gc) Notwithstanding the foregoing provisions of this Section 7, the exercisability recall and or termination of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued Facility pursuant to the exercise terms of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights AgentLoan Documents.
(h) In case the registered holder of 5.3 The security constituted by this Memorandum and any Right Certificate further or other security constituted pursuant hereto, shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon become enforceable immediately on the occurrence of any purported exercise as set forth in this Section 7 unless Event of Default, and the certificate contained Agent shall be entitled then, and at any time thereafter, and without prior notice to the Chargor to sell or otherwise dispose of all the Chargor's title to and interest in the form Mortgaged Securities for such consideration (which may Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd. Facility : Term Loan Facility of election RM91,000,000.00 comprise or include shares or debentures), upon such terms and generally in such manner as the Agent may, in its absolute discretion think fit and so that the Agent shall be entitled as against the Chargor, to purchase set forth on retain and apply the reverse side proceeds of any sale or disposal and all and any amounts then standing to the credit of any cash collateral deposit account pursuant to Clause 5.2 above, in or towards the discharge of the Rights Certificate surrendered Indebtedness as the same fall due, in such manner as the Agent may in its absolute discretion think fit (and for that purpose to effect any currency conversion that the Agent may consider appropriate) with any surplus being paid to the Chargor or other person entitled thereto. The Agent shall not be liable for any loss howsoever arising out of such sale.
5.4 The rights, powers and authorities of the Agent pursuant to the Power of Attorney hereunder shall be in addition to, and shall not in any way prejudice or affect the rights and powers of the Agent under this Memorandum; notwithstanding any other provision herein contained the Agent and or any substitute or agent of the Agent under the said Power of Attorney may at any time prior to the discharge of all moneys hereby secured without notice to the Chargor transfer the Mortgaged Securities into the name of the Agent or its nominees and the Chargor shall upon demand and at the Chargor's cost execute and do all such transfers acts assurances or things as the Agent may require for assuring and vesting the full legal title in the Mortgaged Securities or any of them to and in the name(s) of the Agent or its nominees PROVIDED ALWAYS that save as aforesaid and as is otherwise stated herein neither the Agent nor any of its substitutes or agents under the Power of Attorney will exercise shall have been duly completed and signed any of the other rights, powers or authorities conferred by the registered holder thereof an the Company said Power of Attorney (other than powers of substitution and appointment of agents and the Rights Agent shall have been provided with such additional evidence powers conferred in paragraph (o) of Clause 3.1 of the identity said Power of Attorney) unless and until an Event of Default has occurred, whereupon and whereafter the Beneficial Owner Agent (or former Beneficial Ownerits substitute or agent) or Affiliates or Associates thereof shall be entitled to exercise all and any such rights, powers and authorities as the Company or the Rights Agent shall requestit may in its absolute discretion think fit.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Samples: Loan Agreement (International Wireless Communications Holdings Inc)
Exercise of Rights. (a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) 175 and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, Shares and/or other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event Event, any Rights that are or were Beneficially Owned by a 2015% Stockholder or any Affiliate or Associate of a 2015% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 2015% Stockholder or an Affiliate or Associate of a 2015% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other Shares and/or securities, cash and/or other property), certificates for the number of Preferred Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an and the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 2015% stockholder or an Affiliate or Associate of a 2015% stockholder or transferees hereunder.
Appears in 1 contract
Samples: Rights Agreement (Jacobs Engineering Group Inc /De/)
Exercise of Rights. PURCHASE PRICE: EXPIRATION DATE OF RIGHTS. -------------------------------------------------------------
(a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d7(e) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Datehereof, the registered holder of any Right Rights Certificate may exercise the Rights represented evidenced thereby (except as otherwise provided herein including, without limitation, the restrictions on exercisability set forth in Section 9(c), Section 11(a)(iii) and Section 23(a) hereof) in whole or in part at any time after the Distribution Date upon surrender of such Right the Rights Certificate, with the form of election to purchase, including certificate, purchase and the certificate on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the principal office or offices of the Rights Agent designated for such purpose, together with payment of the Exercise aggregate Purchase Price with respect to the total number of one one-hundredths of a share of Preferred Stock (or other securities, cash or other assets, as the case may be) as to which such surrendered Rights are then exercisable, at or prior to the earlier of (i) the close of business on June 30, 2007 (the ''Final Expiration Date"), or (ii) the time at which the Rights are redeemed as provided in Section 23 hereof (the earlier of (i) and (ii) being herein referred to as the "Expiration Date").
(b) The Purchase Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a share of Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for Stock pursuant to the exercise of each a Right shall initially be fifty dollars ($50.00) 75, and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 13(a) hereof and the other provisions of this Agreementshall be payable in accordance with paragraph (c) below.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(fc) Upon receipt of a Right Rights Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed purchase and the certificate duly executed, with signature guaranteed, accompanied by payment payment, with respect to each Right so exercised, of the Exercise Purchase Price for each Right per one one-hundredth of a share of Preferred Stock (or other securities, cash or other assets, as the case may be) to be exercised purchased as set forth below and an amount equal to any applicable tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order of the Companytransfer tax, the Rights Agent shall shall, subject to Section 20(k) hereof, thereupon promptly (i)
(A) requisition from the any transfer agent of the shares of Preferred Shares Stock (oror make available, following if the occurrence of a Section 11(a)(iiRights Agent is the transfer agent for such shares) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the total number of one one-hundredths of a share of Preferred Shares (or such other securities) Stock to be purchased, purchased and the Company hereby irrevocably authorizes such its transfer agent to comply with all such requests, and/or, as provided in Section 14 hereofor (B) if the Company shall have elected to deposit the total number of shares of Preferred Stock issuable upon exercise of the Rights hereunder with a depository agent, requisition from the depositary depository agent described therein depositary depository receipts representing such number of one one-hundredths of a share of Preferred Share (or such other securities) Stock as are to be purchased (in which case certificates for the shares of Preferred Shares (or such other securities) Stock represented by such receipts shall be deposited by the transfer agent with such depositary the depository agent) and the Company hereby directs such depositary will direct the depository agent to comply with such request, (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash cash, if any, to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) shares in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts certificates or cashdepository receipts, cause the same to be delivered to or upon the order of the registered holder of such Right Rights Certificate, registered in such name or names as may be designated by such holder holder, and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash cash, if any, to or upon the order of the registered holder of such Right Rights Certificate. The payment of the Purchase Price (as such amount may be reduced pursuant to Section 11(a)(iii) hereof) shall be made in cash or by certified bank check or bank draft payable to the order of the Company. In the event that the Company is obligated to issue other securities (including Common Stock) of the Company, pay cash and/or distribute other property pursuant to Section 11(a) hereof, the Company will make all arrangements necessary so that such other securities, cash and/or other property are available for distribution by the Rights Agent, if and when appropriate. The Company reserves the right to require prior to the occurrence of a Triggering Event that, upon any exercise of Rights, a number of Rights be exercised so that only whole shares of Preferred Stock would be issued.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(hd) In case the registered holder of any Right Rights Certificate shall exercise less than all of the Rights represented evidenced thereby, a new Right Rights Certificate representing evidencing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to and delivered to, or upon the order of, the registered holder of such Right Certificate Rights Certificate, registered in such name or to names as may be designated by such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
. (e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11(a)(ii) Event, any Rights beneficially owned by (i) an Acquiring Person or an Associate or Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person (or of any such Associate or Affiliate) who becomes a transferee after the Acquiring Person becomes such, or (iii) a transferee of an Acquiring Person (or of any such Associate or Affiliate) who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and receives such Rights pursuant to a transfer (whether or not for consideration) from the Acquiring Person to holders of equity interests in such Acquiring Person or to any Person with whom the Acquiring Person has any continuing agreement, arrangement or understanding regarding the transferred Rights, shall become null and void without any further action and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under any provision of this Agreement or otherwise. The Company shall use all reasonable efforts to insure that the provisions of this Section 7(e) and Section 4(b) hereof are complied with, but shall have no liability to any holder of Rights Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its Affiliates, Associates or transferees hereunder. (f) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless such registered holder shall have (i) completed and signed the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed exercise, and signed by the registered holder thereof an the Company and the Rights Agent shall have been (ii) provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall reasonably request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Samples: Rights Agreement (Mmi Companies Inc)
Exercise of Rights. (a) Until Subject to the Distribution Dateterms and conditions set forth in this Agreement, no Right Bridge Agent and the Bridge Buyers shall have the right to manage, perform and enforce the terms of the Bridge Purchase Documents with respect to the Collateral, to exercise and enforce all privileges and rights thereunder according to their discretion and the exercise of their business judgment, including, without limitation, the right to take or retake control or possession of the Collateral and to hold, prepare for sale, process, sell, lease, dispose of, or liquidate the Collateral, and to incur expenses in connection with such sale, lease or other disposition and to exercise all of the rights and remedies of a secured lender under the UCC of any applicable jurisdiction. In conducting any public or private sale under the UCC, the Bridge Agent shall give the Initial Purchase Agent not less than five (5) days prior notice of such sale or notice of such sale as may be exercisedrequired under the applicable UCC; provided, however, that, subject to Section 2.10 hereof, ten (10) days’ notice shall be deemed in all respects to be commercially reasonable notice.
(b) Subject to Section 7(dUntil the Discharge of Senior Debt, neither the Initial Purchase Agent nor any Initial Buyer (other than Marquis) and (g) hereof and shall, without the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier written consent of the Redemption Date or the Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office holders of the Rights Agent designated for such purposeSenior Debt, together with payment of the Exercise Price for each Right exercised. Upon the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities)take any Enforcement Action.
(c) The Exercise Price for Notwithstanding anything to the exercise contrary contained herein, neither Initial Purchase Agent nor any Initial Buyer will hinder, delay or contest any Enforcement Action taken by Bridge Agent, any Bridge Buyer, or Marquis (in the case of each Right shall initially be fifty dollars ($50.00) and shall be payable Marquis, in lawful money respect of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other propertyInitial Purchase Debt) to be acquired upon exercise of the extent such Buyer Party is diligently pursuing such Enforcement Action in good faith and in a Right shall be subject to adjustment from time to time as provided commercially reasonable manner and in Sections 7(e), 11 and 13 hereof and compliance with the other provisions terms of this Agreement.
(d) Notwithstanding anything At any time in this Agreement connection with an Enforcement Action taken at the direction of the Bridge Agent or Bridge Buyers, the Initial Purchase Agent shall release or otherwise terminate its Liens on the subject Collateral in favor of the Initial Buyers (including a release of Obligors on a guaranty to the contrary, from and after the earlier extent such Enforcement Action consists of a sale of all of the date equity securities of such Obligor which have been pledged to Initial Purchase Agent), to the extent such Collateral is to be sold or otherwise disposed of pursuant to an Enforcement Action; provided that such release shall not extend to or otherwise affect any of the first Section 11(a)(ii) Event or the date rights of the first Section 13(a) Event Initial Buyers to Liens on and security interests in the proceeds from any Rights that are such sale or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate other disposition of a 20% Stockholder at any time on or after Collateral, subject to the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rightsterms hereof.
(e) Prior Bridge Agent and Bridge Buyers may at all times take, or direct Initial Purchase Agent to take, Enforcement Actions in respect of the Collateral to the Distribution Date, if a majority extent permitted by the terms and provisions of the Board of Directors shall have determined that such action adequately protects Bridge Purchase Documents and the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoingInitial Purchase Documents, in each case having an aggregate Current Market Price equal without notice to the aggregate Current Market Price or further consent of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding RightsInitial Buyers.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to be exercised and an amount equal to any applicable tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the number of Preferred Shares (or such other securities) to be purchased, and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Exercise of Rights. PURCHASE PRICE: EXPIRATION DATE OF RIGHTS.
(a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions of this Agreement, at any time after the Close of Business on the Distribution Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, the The registered holder of any Right Certificate may exercise the Rights represented evidenced thereby (except as otherwise provided herein) in whole or in part at any time after the Distribution Date upon surrender of such the Right Certificate, with the form of election to purchase, including certificate, purchase on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office principal offices of the Rights Agent designated for such purposeAgent, together with payment of the Exercise Purchase Price for each Right Common Share as to which the Rights are exercised. Upon , at or prior to the earlier of (i) the close of business on April 16, 2008 (the "Final Expiration Date"), (ii) the time at which the Rights are redeemed as provided in Section 23 hereof (the "Redemption Date") or (iii) the time at which such Rights are exchanged as provided in Section 24 hereof.
(b) The Purchase Price for each Common Share pursuant to the exercise of an exercisable Right and payment of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price for the exercise of each Right shall initially be fifty dollars ($50.00) 160, shall be subject to adjustment from time to time as provided in Sections 11 and 13 hereof and shall be payable in lawful money of the United States of America in accordance with Section 7(fparagraph (c) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreementbelow.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(fc) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and purchase duly executed, with signature guaranteed, accompanied by payment of the Exercise Purchase Price for each Right the number of Common Shares (or other securities, cash or other property, as the case may be) to be exercised purchased and an amount equal to any applicable transfer tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof in cash, or by certified check or cashier's check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the any transfer agent of the Preferred Common Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the number of Preferred Common Shares (or such other securities) to be purchased, purchased and the Company hereby irrevocably authorizes such its transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreementappropriate, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) shares in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when necessary to comply with this Agreementappropriate, after receipt thereofreceipt, deliver such cash to or upon the order of the registered holder of such Right Certificate. The payment of the Purchase Price (as such amount may be reduced (including to zero) pursuant to Section 11(a)(iv) hereof) may be made in cash or by certified bank check or bank draft payable to the order of the Company. In the event that the Company is obligated to issue other securities of the Company, pay cash and/or distribute other property pursuant to Section 11(a) hereof, the Company will make all arrangements necessary so that such other securities, cash and/or other property are available for distribution by the Rights Agent, if and when appropriate.
(g) Notwithstanding the foregoing provisions of this Section 7, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; provided, however, that nothing contained in this Section 7 shall relieve the Company of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agent.
(hd) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented evidenced thereby, a new Right Certificate representing evidencing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's his duly authorized assigns, subject to the provisions of Section 14 hereof.
. (ie) Notwithstanding anything in any other provision of this Agreement to the contraryAgreement, neither the Rights Agent nor the Company shall be obligated to undertake take any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless and until the registered holder shall have completed and signed the certificate contained in the form of election to purchase shares set forth on the reverse side of the Rights Certificate surrendered for such exercise thereof and shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or and former Beneficial OwnerOwner (and Associates and Affiliates of the foregoing) or Affiliates or Associates thereof as the Company or the Rights Agent shall reasonably request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Exercise of Rights. If any of Collateral Agent or the Creditors: (a1) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions ------------------ grants any extension of this Agreement, at any time after the Close of Business on the Distribution Date and prior or forbearance with respect to the Close payment of Business on any indebtedness secured by this Mortgage; (2) takes other or additional security for the earlier payment thereof; (3) waives or fails to exercise any right granted under the Credit Documents; (4) grants any release, with or without consideration of the Redemption Date or the Expiration Date, the registered holder of any Right Certificate may exercise the Rights represented thereby in whole or in any part upon surrender of such Right Certificate, with the form of election to purchase, including certificate, on the reverse side thereof properly completed and duly executed, with signature guaranteed, to the Rights Agent at the office of the Rights Agent designated security held for such purpose, together with the payment of the Exercise Price for each Right exercised. Upon indebtedness secured hereby; (5) amends or modifies in any respect with the exercise consent of Company any of the terms and provisions of the Credit Documents, then, and in any such event, such act or omission to act shall not release BCRE under any covenant of this Mortgage, nor preclude Collateral Agent from exercising any right, power or privilege herein granted or intended to be granted upon the occurrence or existence of an exercisable Right Event of Default or otherwise and payment shall not in any way impair or affect the lien or priority of this Mortgage. No right or remedy of Collateral Agent or the Creditors shall be exclusive of, but shall be in addition to, every other right or remedy, now or hereafter existing at law or in equity. No delay in exercising, or omission to exercise, any right or remedy accruing upon the occurrence or existence of an Event of Default shall impair any such right or remedy, or shall be construed to be a waiver of any such Event of Default, or acquiescence therein, nor shall it affect any subsequent default of the Exercise Price in accordance with the provisions of this Agreement, the holder of such Right same or a different nature. Any waiver by Collateral Agent hereunder shall be entitled to receive, subject to adjustment as provided herein, one one-hundredth of effective only if expressed in a Preferred Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other securities).
(c) The Exercise Price writing signed by Collateral Agent and then only for the exercise of each Right shall initially be fifty dollars ($50.00) time and shall be payable in lawful money of the United States of America in accordance with Section 7(f) hereof. The Exercise Price and the number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property) to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from and after the earlier of the date of the first Section 11(a)(ii) Event extent stated therein. Every such right or the date of the first Section 13(a) Event any Rights that are or were Beneficially Owned by a 20% Stockholder or any Affiliate or Associate of a 20% Stockholder at any time on or after the Distribution Date shall be null and void, and for all purposes of this Agreement such Rights shall thereafter be deemed not to be outstanding, and any holder of such Rights (whether or not such holder is a 20% Stockholder or an Affiliate or Associate of a 20% Stockholder) shall thereafter have no right to exercise or exchange such Rights.
(e) Prior to the Distribution Date, if a majority of the Board of Directors shall have determined that such action adequately protects the interests of the holders of Rights, the Company may, in its discretion, substitute for all or any portion of the Preferred Shares that would otherwise be issuable (after the Close of Business on the Distribution Date) upon the exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other equity securities of the Company, (iii) debt securities of the Company, (iv) other property or (v) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Preferred Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase, including certificate, properly completed and duly executed, with signature guaranteed, accompanied by payment of the Exercise Price for each Right to remedy may be exercised concurrently or independently and an amount equal to any applicable tax or governmental charge required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof by certified check or cashier's check payable to the order of the Company, the Rights Agent shall thereupon promptly (i) requisition from the transfer agent of the Preferred Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, other securities, cash and/or other property), certificates for the number of Preferred Shares (or such other securities) to be purchased, when and the Company hereby irrevocably authorizes such transfer agent to comply with all such requests, and/or, as provided in Section 14 hereof, requisition from the depositary agent described therein depositary receipts representing such number of one-hundredths of a Preferred Share (or such other securities) as are to be purchased (in which case certificates for the Preferred Shares (or such other securities) represented by such receipts shall be deposited by the transfer agent with such depositary agent) and the Company hereby directs such depositary agent to comply with such request, (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares (or such other securities) in accordance with Section 14 hereof, (iii) after receipt of such certificates, depositary receipts or cash, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names often as may be designated deemed expedient by such holder Collateral Agent. All rights and (iv) when necessary to comply with this Agreementremedies of Collateral Agent hereunder and all obligations of BCRE shall be absolute and unconditional, after receipt thereof, deliver such cash to irrespective of any lack of validity or upon the order enforceability of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7Credit Documents or any other circumstance which might otherwise constitute a defense available to, the exercisability of the Rights shall be suspended for such period as shall reasonably be necessary for the Company to register under the Securities Act and any applicable securities law of any jurisdiction the Preferred Shares to be issued pursuant to the exercise of the Rights; providedor a discharge of, however, that nothing contained BCRE in this Section 7 shall relieve the Company respect of its obligations under Section 9(c) hereof. Upon any such suspension, the Company shall notify the Rights Agentsecured hereby.
(h) In case the registered holder of any Right Certificate shall exercise less than all of the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to such holder's duly authorized assigns, subject to the provisions of Section 14 hereof.
(i) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action whatsoever with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise shall have been duly completed and signed by the registered holder thereof an the Company and the Rights Agent shall have been provided with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall request.
(j) Neither the Company nor the Rights Agent shall have any liability to any holder of Rights or any other Person as a result of the Company's failure to make any determination under this Section 7 or any other section with respect to a 20% stockholder or an Affiliate or Associate of a 20% stockholder or transferees hereunder.
Appears in 1 contract
Samples: Secured Revolving Credit Agreement (Boston Chicken Inc)
