Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitled, from time to time, to reasonable compensation for its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around the date hereof. The Warrant Agent shall also be entitled to receive from time to time, on demand of the Warrant Agent, its reasonable and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), which may be paid, incurred or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from any action taken, suffered or omitted by the Warrant Agent in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. The Warrant Agent shall be authorized and protected and shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in connection with its acceptance and administration of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement, or other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counsel. The Warrant Agent shall not be deemed to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and the Warrant Agent shall be fully protected and shall incur no liability for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required to indemnify the Warrant Agent for any amount paid or payable by the Warrant Agent in the settlement or compromise of, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time to time, the Company may provide Warrant Agent with instructions concerning the services performed by the Warrant Agent hereunder. In addition, at any time Warrant Agent may apply to any officer of the Company for instruction, and may consult with legal counsel for Warrant Agent or Company with respect to any matter arising in connection with the services to be performed by the Warrant Agent under this Agreement. Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreement.
Appears in 3 contracts
Sources: Warrant Agreement (Calumet, Inc. /DE), Conversion Agreement (Calumet Specialty Products Partners, L.P.), Conversion Agreement (Calumet Specialty Products Partners, L.P.)
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to time, on demand the validity or value or authorization of the Warrant AgentCertificates (except its countersignature thereof) or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and nonassessable.
(b) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Exercise Price or the Redemption Price provided in this Agreement, its reasonable and documented out-of-pocket expenses or to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and except with respect to the exercise and performance of its duties hereunder) in connection with Warrant Certificates after actual notice of any adjustment of the services rendered hereunder by the Warrant AgentExercise Price). The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not (i) be liable for any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost recital or expense (including the reasonable fees and expenses statement of legal counsel), which may be paid, incurred fact contained herein or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties (except its countersignature on the Warrant Certificates and such statements or recitals as describe the Warrant Agent or action taken or to be taken by it); (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Certificate; or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s own gross negligence, bad faith, faith or willful misconduct misconduct.
(which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. c) The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel.
(d) Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statement, order or other paper or document believed demand of the Company shall be sufficiently evidenced by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, an instrument signed by the proper Person Chairman of the Board of Directors, Chief Executive Officer, Chief Financial Officer, President or Persons, or otherwise upon the advice of counselany Vice President (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand reasonably believed by it to have knowledge of any event of which it was supposed be genuine.
(e) The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which its reasonable expenses hereunder; the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless from and against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's gross negligence, bad faith or compromise ofwillful conduct.
(f) The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities resulting as a result of the Warrant Agent's own gross negligence or willful misconduct), after giving thirty (30) days' prior written notice to the Company. At least fifteen (15) days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect toinability of the Warrant Agent to act as such hereunder, the Company shall appoint in writing a new warrant agent. If the Company shall fail to make such appointment within a period of fifteen (15) days after it has been notified in writing of such resignation by the resigning Warrant Agent, then the Registered Holder of any pending Warrant Certificate may apply to any court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or threatened action by such a court, shall be a bank or claim trust company having a capital and surplus, as shown by its last published report to its stockholders deemed by the Company to be adequate, or a stock transfer company. After acceptance in respect writing of which indemnification or contribution may be sought hereunder without such appointment by the written consent of new warrant agent is received by the Company, which consent such new warrant agent shall not be unreasonably withheldvested with the same powers, conditioned rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or delayed. From time deed; but if for any reason it shall be necessary or expedient to timeexecute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company may provide and shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate.
(g) Any corporation into which the Warrant Agent or any new warrant agent may be converted or merged, any corporation resulting from any consolidation to which the Warrant Agent or any new warrant agent shall be a party, or any corporation succeeding to the corporate trust business of the Warrant Agent or any new warrant agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to the Warrant Agent under the provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holders of each Warrant Certificate.
(h) The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with instructions concerning the services performed Company in the same manner and to the same extent and with like effect as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(i) The Warrant Agent shall retain for a period of two (2) years from the date of exercise, any Warrant Certificate received by it upon such exercise.
(j) The Warrant Agent shall account promptly to the Company with respect to Warrants exercised and concurrently pay to the Company all moneys received by the Warrant Agent hereunder. In addition, at any time Warrant Agent may apply to any officer for the purchase of securities or other property through the Company for instruction, and may consult with legal counsel for Warrant Agent or Company with respect to any matter arising in connection with the services to be performed by the Warrant Agent under this Agreement. Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion exercise of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this AgreementWarrants.
Appears in 3 contracts
Sources: Warrant Agreement (Isonics Corp), Warrant Agreement (NPC Holdings Inc), Warrant Agreement (Isonics Corp)
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive from time make any representations as to timethe validity, on demand value, or authorization of the Warrant AgentCertificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and nonassessable. The Warrant Agent shall not at any time be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, or to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be liable for any recital or statement of facts contained herein or for any action taken, suffered, or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its reasonable covenants and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred obligations contained in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderor in any Warrant Certificate, or (iii) be liable for any act or omission in connection with the services rendered hereunder by the Warrant Agentthis Agreement except for its own negligence or wilful misconduct. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against may at any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense time consult with counsel satisfactory to it (including the reasonable fees and expenses of legal counsel), which who may be paid, incurred counsel for the Company) and shall incur no liability or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from responsibility for any action taken, suffered or omitted by the Warrant Agent it in connection good faith in accordance with the executionopinion or advice of such counsel. Any notice, acceptancestatement, administrationinstruction, exercise and performance of its duties under this Agreementrequest, including the reasonable costs and expenses of defending against any claim of liability arising therefromdirection, directly or indirectlyorder, or demand of enforcing the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, President, any Vice President, its rights under this Agreement; providedSecretary, that such covenant and agreement does not extend to, and the or Assistant Secretary (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event liable for which recovery from Warrant Agent is being sought. The Warrant Agent shall be authorized and protected and shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in connection accordance with its acceptance and administration of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statementorder, or other paper or document demand believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselgenuine. The Warrant Agent shall not be deemed Company agrees to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses, and liabilities, including judgments, costs, and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses, and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwilful misconduct. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or wilful misconduct), after giving 60 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of 30 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties, and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act, or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act, or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate. Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate. The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 3 contracts
Sources: Warrant Agreement (Flemington Pharmaceutical Corp), Warrant Agreement (Flemington Pharmaceutical Corp), Warrant Agreement (Flemington Pharmaceutical Corp)
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company and National, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to time, on demand the validity or value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses nonassessable.
(including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderb) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Exercise Price or the Redemption Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of fact contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross own negligence, bad faith, faith or willful misconduct misconduct.
(which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. c) The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company or for National) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel.
(d) Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statement, order or other paper or document believed demand of the Company shall be sufficiently evidenced by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, an instrument signed by the proper Person Chairman of the Board of Directors, Chief Executive Officer, Chief Financial Officer, President or Persons, or otherwise upon the advice of counselany Vice President (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand reasonably believed by it to have knowledge of any event of which it was supposed be genuine.
(e) The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which its reasonable expenses hereunder; the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless from and against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence, bad faith or compromise ofwillful conduct.
(f) The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities resulting as a result of the Warrant Agent's own gross negligence or willful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint in writing a new warrant agent. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate.
(g) Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged, any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party, or any corporation succeeding to the services corporate trust business of the Warrant Agent or any new warrant agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holders of each Warrant Certificate.
(h) The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effect as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company or for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. other legal entity.
(i) The Warrant Agent shall not be held to have notice retain for a period of two years from the date of exercise any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of Warrant Certificate received by it upon such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementexercise.
Appears in 3 contracts
Sources: Warrant Agreement (Us Golf & Entertainment Inc), Warrant Agreement (Casull Arms Corp), Warrant Agreement (Thermoenergy Corp)
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive make any representations as to the validity, value or authorization of the Warrant Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and nonassessable. The Warrant Agent shall account promptly to the Company with respect to Warrants exercised and concurrently pay the Company, as provided in Section 4, all moneys received by the Warrant Agent upon the exercise of such Warrants. The Warrant Agent shall, upon request of the Company from time to time, on demand deliver to the Company such complete reports of registered ownership of the Warrants and such complete records of transactions with respect to the Warrants and the shares of Common Stock as the Company may request. The Warrant AgentAgent shall also make available to the Company and ▇▇▇▇▇ for inspection by their agents or employees, its reasonable from time to time as either of them may request, such original books of accounts and documented out-of-pocket expenses record (including reasonable and documented counsel fees and other disbursements incurred in original Warrant Certificates surrendered to the preparation, delivery, negotiation, amendment, administration and execution Warrant Agent upon exercise of this Agreement and Warrants) as may be maintained by the exercise and performance of its duties hereunder) Warrant Agent in connection with the services rendered hereunder by issuance and exercise of Warrants hereunder, such inspections to occur at the Warrant Agent's office as specified in Section 17, during normal business hours. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, except for its own negligence or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being soughtwilful misconduct. The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel. Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, certificatePresident, statementany Vice President, its Secretary, or Assistant Secretary, (unless other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselevidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine. The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwilful misconduct. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or wilful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate. Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate. The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 3 contracts
Sources: Warrant Agreement (Healthcore Medical Solutions Inc), Warrant Agreement (Careflow Net Inc), Warrant Agreement (Heuristic Development Group Inc)
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive make any representations as to the validity, value or authorization of the Warrant Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and nonassessable.
(b) The Warrant Agent shall account promptly to the Company with respect to Warrants exercised and concurrently pay the Company, as provided in Section 4, all moneys received by the Warrant Agent upon the exercise of such Warrants. The Warrant Agent shall, upon request of the Company from time to time, on demand deliver to the Company such complete reports of registered ownership of the Warrants and such complete records of transactions with respect to the Warrants and the shares of Common Stock as the Company may request. The Warrant AgentAgent shall also make available to the Company and Commonwealth for inspection by their agents or employees, its reasonable from time to time as either of them may request, such original books of accounts and documented out-of-pocket expenses record (including reasonable and documented counsel fees and other disbursements incurred in original Warrant Certificates surrendered to the preparation, delivery, negotiation, amendment, administration and execution Warrant Agent upon exercise of this Agreement and Warrants) as may be maintained by the exercise and performance of its duties hereunder) Warrant Agent in connection with the services rendered hereunder by issuance and exercise of Warrants hereunder, such inspections to occur at the Warrant Agent. 's office as specified in Section 18, during normal business hours.
(c) The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Exercise Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, except for its own negligence or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being soughtwilful misconduct. The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel.
(d) Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, certificateChief Executive Officer, statementPresident, any Vice President, its Secretary, or Assistant Secretary, (unless other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselevidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine.
(e) The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwilful misconduct.
(f) The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or wilful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate.
(g) Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate.
(h) The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 3 contracts
Sources: Warrant Agreement (Iparty Corp), Warrant Agreement (Dynamicweb Enterprises Inc), Warrant Agreement (Iparty Corp)
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive from time make any representations as to timethe validity, on demand value, or authorization of the Warrant AgentCertificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and nonassessable. The Warrant Agent shall not at any time be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, or to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be liable for any recital or statement of facts contained herein or for any action taken, suffered, or omitted by it in reliance on any warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its reasonable covenants and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred obligations contained in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderor in any Warrant Certificate, or (iii) be liable for any act or omission in connection with the services rendered hereunder by the Warrant Agentthis Agreement except for its own negligence or wilful misconduct. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against may at any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense time consult with counsel satisfactory to it (including the reasonable fees and expenses of legal counsel), which who may be paid, incurred counsel for the Company) and shall incur no liability or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from responsibility for any action taken, suffered or omitted by the Warrant Agent it in connection good faith in accordance with the executionopinion or advice of such counsel. Any notice, acceptancestatement, administrationinstruction, exercise and performance of its duties under this Agreementrequest, including the reasonable costs and expenses of defending against any claim of liability arising therefromdirection, directly or indirectlyorder, or demand of enforcing the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, President, any Vice President, its rights under this Agreement; providedSecretary, that such covenant and agreement does not extend toor Assistant Secretary, and the (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event liable for which recovery from Warrant Agent is being sought. The Warrant Agent shall be authorized and protected and shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in connection accordance with its acceptance and administration of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statementorder, or other paper or document demand believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselgenuine. The Warrant Agent shall not be deemed Company agrees to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses, and liabilities, including judgments, costs, and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses, and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwilful misconduct. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or wilful misconduct), after giving 60 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of 30 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties, and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act, or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act, or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate. Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate. The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 3 contracts
Sources: Warrant Agreement (Thermacell Technologies Inc), Warrant Agreement (Hertz Technology Group Inc), Warrant Agreement (Amplidyne Inc)
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to time, on demand the validity or value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses nonassessable.
(including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderb) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost time (i) be liable for any recital or expense (including the reasonable fees and expenses statement of legal counsel), which may be paid, incurred fact contained herein or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, own negligence or willful misconduct misconduct.
(which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. c) The Warrant Agent shall be authorized and protected may at any time consult with counsel for the Company and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel.
(d) Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by its President, certificatea Vice President, statementits Treasurer, an Assistant Treasurer, its Secretary, or an Assistant Secretary (unless other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselevidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand.
(e) The Company agrees to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected the usual and shall incur no liability customary compensation it normally receives for failing its services of this nature and to take action in connection therewith unless and until reimburse it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writingfor its reasonable expenses hereunder; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required it further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except those arising as a result of the Warrant Agent's negligence or compromise ofwillful misconduct.
(f) The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or willful misconduct), or entry into after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to each Registered Holder at the Company's expense. Upon such resignation the Company shall appoint in writing a new warrant agent. If the Company shall fail to make such appointment within a period of 30 days after it has been notified in writing of such resignation by the resigning Warrant Agent, then any judgment with respect to, Registered Holder may apply in any pending or threatened action or claim court of competent jurisdiction for the appointment of a new warrant agent. After acceptance in respect writing of which indemnification or contribution may be sought hereunder without such appointment by the written consent of new warrant agent is received by the Company, which consent such new warrant agent shall not be unreasonably withheldvested with the same powers, conditioned rights, duties and responsibilities as if it had been originally named herein as the warrant agent, without any further assurance, conveyance, act or delayed. From time deed; provided, however, that if for any reason it shall be necessary or expedient to timeexecute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company may provide and shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with the resigning Warrant Agent with instructions concerning the services performed by and shall forthwith cause a copy of such notice to be mailed to each Registered Holder.
(g) Any corporation into which the Warrant Agent hereunder. In addition, at or any time Warrant Agent new warrant agent may apply be converted or merged or any corporation resulting from any consolidation to any officer of which the Company for instruction, and may consult with legal counsel for Warrant Agent or Company with respect any new warrant agent shall be a party or any corporation succeeding to the corporate trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any matter arising in connection with the services further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed, at its expense, to the Company and to each Registered Holder.
(h) The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effect as though it were not the Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 3 contracts
Sources: Common Stock Purchase Warrant Agreement (Translation Group LTD), Common Stock Purchase Warrant Agreement (Translation Group LTD), Common Stock Purchase Warrant Agreement (Dynamic International LTD)
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date hereofprovisions of this Agreement. The Warrant Agent shall also not, by issuing and delivering Warrant certificates or by any other act hereunder be entitled deemed to receive from time make any representations as to timethe validity, on demand value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses nonassessable.
(including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderb) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, except for its own negligence or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. wilful misconduct.
(c) The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, such counsel.
(d) Any notice, instructionstatement, instrument, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, certificatePresident, statementany Vice President, its Secretary, or Assistant Secretary, unless other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselevidence in respect thereof is specifically prescribed in this Agreement. The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine.
(e) The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwilful misconduct.
(f) The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or wilful misconduct), after giving thirty (30) days' prior written notice to the Company. At least fifteen (15) days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such under this Agreement, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of fifteen (15) days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason, it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate.
(g) Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate.
(h) The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 3 contracts
Sources: Warrant Agreement (Muse Technologies Inc), Warrant Agreement (Muse Technologies Inc), Warrant Agreement (SFBC International Inc)
Concerning the Warrant Agent. (a) The Company agrees that to pay to the Warrant Agent is entitled, from time to time, to reasonable compensation for its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around to by the date hereof. The Warrant Agent shall also be entitled to receive from time to time, on demand of Company and the Warrant Agent, its together with reimbursements for reasonable and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder.
(b) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify the Warrant Agent for, and to hold the Warrant Agent harmless against any losscosts, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense expenses (including the reasonable fees and expenses of its legal counsel), losses or damages, which may be paid, incurred or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from any action taken, suffered or omitted by the its actions as Warrant Agent in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreementpursuant hereto, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreementhereunder; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s its own gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be each as determined by a final, final non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. The Warrant Agent shall be authorized and protected and shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in connection with its acceptance and administration of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement, or other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counsel. The Warrant Agent shall not be deemed to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and the Warrant Agent shall be fully protected and shall incur no liability for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation .
(of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claimc) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required to indemnify the Warrant Agent for any amount paid or payable by the Warrant Agent in the settlement or compromise of, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time to time, the Company may provide the Warrant Agent with written instructions concerning the services performed by the Warrant Agent hereunder. In addition, at any time the Warrant Agent may apply to any officer of the Company for written instruction, and may consult with legal counsel for the Warrant Agent or the Company with respect to any matter arising in connection with the services to be performed by the Warrant Agent under this Agreement. The Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken taken, suffered or omitted to be taken by Warrant Agent it in reliance upon any Company instructions or upon the advice or opinion of such counsel. The Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from the Company. .
(d) Notwithstanding anything in this Agreement contained herein to the contrary, neither the Warrant Agent’s aggregate liability during any term of this Agreement with respect to, arising from, or arising in connection with this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Company to Warrant Agent as fees and charges, but not including reimbursable expenses, during the twelve (12) months immediately preceding the event for which recovery from Warrant Agent is being sought.
(e) In order that the indemnification provisions contained in this Section 15 shall apply, upon the assertion of a claim for which one party may be required to indemnify the other, the party seeking indemnification shall promptly notify the other party of such assertion, and shall keep the other party advised with respect to all material developments concerning such claim. The indemnifying party at its own expense shall have the option to participate with the indemnified party in the defense of such claim or to defend against said claim in its own name or the name of the indemnified party. The indemnified party shall in no case settle any claim or make any compromise in any case in which the indemnifying party may be required to indemnify it except with the indemnifying party’s prior written consent.
(f) Neither party to this Agreement shall be liable to the other party for any consequential, indirect, specialpunitive, punitive special or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This .
(g) The terms of this Section 12 13 shall survive the termination of this Agreement and the resignation or discharge removal of the Warrant Agent, the expiration of the Warrants or the termination of this Agreement.
Appears in 3 contracts
Sources: Warrant Agreement (Immunomedics Inc), Warrant Agreement (Argos Therapeutics Inc), Underwriting Agreement (Immunomedics Inc)
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive from time make any representations as to timethe validity, on demand value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agentnonassessable. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, except for its own negligence or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being soughtwilful misconduct. The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel. Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, certificatePresident, statementany Vice President, its Secretary, or Assistant Secretary, (unless other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselevidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine. The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwilful misconduct. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or wilful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company that is a registered transfer agent under the Securities Exchange Act of 1934, as amended. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate. Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate. The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 3 contracts
Sources: Warrant Agreement (Marquee Group Inc), Warrant Agreement (Marquee Group Inc), Warrant Agreement (Marquee Group Inc)
Concerning the Warrant Agent. The Company agrees that to pay to the Warrant Agent is entitledAgent, from time to time, to reasonable compensation for its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around the date hereof. The Warrant Agent shall also be entitled to receive schedule, reasonable compensation for all services rendered by it hereunder and, from time to time, on demand of the Warrant Agent, its reasonable expenses and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against any loss, and all liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or cost, expense (including the reasonable fees and expenses of its legal counsel), loss or damage, which may be paid, incurred or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action actions taken, suffered suffered, or omitted to be taken by the Warrant Agent in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreementhereunder; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costsliability, expensesjudgment, losses and damages fine, penalty, claim, demand, settlement, cost, expense, loss or damage incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s its own gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be each as determined by a final, final non-appealable judgment of a court of competent jurisdiction). From time to time, the Company may provide the Warrant Agent with instructions concerning the services performed by the Warrant Agent hereunder. In addition, at any time the Warrant Agent may apply to the Chief Executive Officer, the Chief Financial Officer or the Corporate Controller of Company for instruction, and may consult with legal counsel for the Warrant Agent or the Company with respect to any matter arising in connection with the services to be performed by the Warrant Agent under this Agreement. The Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by the Company for any action taken or omitted by the Warrant Agent in reliance upon any instructions by such officers of the Company or upon the advice or opinion of legal counsel for the Company. The Warrant Agent shall not be held to have notice of any change of authority of any such officer of the Company until receipt of written notice thereof from the Company. To the extent the Company is not also a party to an action, proceeding, suit or claim against the Warrant Agent concerning this Agreement or the performance by the Warrant Agent of its duties hereunder, the Warrant Agent shall, as promptly as practicable, notify the Company thereof in writing in accordance with Section 21 of the assertion of such action, proceeding, suit or claim against the Warrant Agent, after the Warrant Agent has actual notice of such assertion of an action, proceeding, suit or claim or has been served with the summons or other first legal process giving information as to the nature and basis of the action, proceeding, suit or claim; further providedprovided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder, thatexcept to the extent a court of competent jurisdiction determines that such failure actually prejudiced the Company. The Company shall be entitled to participate at its own expense in the defense of any such action, proceeding, suit or claim. The Warrant Agent agrees not to settle any litigation in connection with any action, proceeding, suit or claim with respect to which it may seek indemnification from the Company without the prior written consent of the Company, which consent shall not be unreasonably withheld, delayed or conditioned. Notwithstanding anything to the contrary herein, the Warrant Agent’s aggregate liability during any term of with respect to, arising from, or arising in connection with this Agreement or any Warrant, or from all services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges charges, but not including reimbursable expenses, during the twelve (12) months immediately preceding the event for which recovery from the Warrant Agent is being sought. The Warrant Agent and the Company agree that all books, records, information and data pertaining to the business of the other party, including inter alia, personal, non-public Holder information, which are exchanged or received pursuant to the negotiation or the carrying out of this Agreement (including the fees for services set forth in the mutually agreed upon fee schedule) shall be authorized and protected remain confidential, and shall incur no liability for not be voluntarily disclosed to any other person, except as may be required by law, including, without limitation, pursuant to subpoenas from state or federal government authorities (e.g., in respect divorce and criminal actions). The provisions of any action takenthis Section 16, suffered or omitted to be taken by it in connection with its acceptance Section 18, and administration Section 30 below shall survive the expiration of the Warrants and the termination of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment resignation, replacement or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement, or other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counsel. The Warrant Agent shall not be deemed to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and the Warrant Agent shall be fully protected and shall incur no liability for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights removal of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required to indemnify the Warrant Agent for any amount paid or payable by the Warrant Agent in the settlement or compromise of, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time to time, the Company may provide Warrant Agent with instructions concerning the services performed by the Warrant Agent hereunder. In addition, at any time Warrant Agent may apply to any officer of the Company for instruction, and may consult with legal counsel for Warrant Agent or Company with respect to any matter arising in connection accordance with the services to be performed by the Warrant Agent under this Agreement. Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementterms hereof.
Appears in 3 contracts
Sources: Warrant Agreement (M-Tron Industries, Inc.), Warrant Agreement (M-Tron Industries, Inc.), Warrant Agreement (M-Tron Industries, Inc.)
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive from time make any representations as to timethe validity, on demand value, or authorization of the Warrant AgentCertificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and nonassessable. The Warrant Agent shall not at any time be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, or to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be liable for any recital or statement of facts contained herein or for any action taken, suffered, or omitted by it in reliance on any warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its reasonable covenants and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred obligations contained in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderor in any Warrant Certificate, or (iii) be liable for any act or omission in connection with the services rendered hereunder by the Warrant Agentthis Agreement except for its own negligence or wilful misconduct. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against may at any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense time consult with counsel satisfactory to it (including the reasonable fees and expenses of legal counsel), which who may be paid, incurred counsel for the Company) and shall incur no liability or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from responsibility for any action taken, suffered or omitted by the Warrant Agent it in connection good faith in accordance with the executionopinion or advice of such counsel. Any notice, acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. The Warrant Agent shall be authorized and protected and shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in connection with its acceptance and administration of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statementorder, or other paper or document believed demand of the Company shall be sufficiently evidenced by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, an instrument signed by the proper Person or PersonsChairman of the Board, President, any Vice President, its Secretary, or otherwise upon the advice of counsel. The Warrant Agent shall not be deemed to have knowledge of any event of which it was supposed to receive notice thereof hereunderAssistant Secretary, and the Warrant Agent shall be fully protected and shall incur no liability for failing to take action in connection therewith (unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim other evidence in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required to indemnify the Warrant Agent for any amount paid or payable by the Warrant Agent in the settlement or compromise of, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time to time, the Company may provide Warrant Agent with instructions concerning the services performed by the Warrant Agent hereunder. In addition, at any time Warrant Agent may apply to any officer of the Company for instruction, and may consult with legal counsel for Warrant Agent or Company with respect to any matter arising in connection with the services to be performed by the Warrant Agent under this Agreement. Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreement.herein specifically
Appears in 3 contracts
Sources: Warrant Agreement (All Communications Corp/Nj), Warrant Agreement (All Communications Corp/Nj), Warrant Agreement (All Communications Corp/Nj)
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date hereofprovisions of this Agreement. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive from make any representations as to the validity, value or authorization of the
(b) The Warrant Agent shall not at any time be under any duty or responsibility to time, on demand any holder of Warrant Certificates to make or cause to be made any adjustment of the Warrant AgentPurchase Price or the Redemption Price provided in this Agreement, its reasonable and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees or to indemnify and to hold the Warrant Agent harmless against determine whether any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, except for its own negligence or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. wilful misconduct.
(c) The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, such counsel.
(d) Any notice, instructionstatement, instrument, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, certificatePresident, statementany Vice President, its Secretary, or Assistant Secretary, unless other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselevidence in respect thereof is specifically prescribed in this Agreement. The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine.
(e) The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and hold it harmless against any and all costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement or compromise ofexecution of its duties and powers hereunder except losses, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent expenses and liabilities arising as a result of the Warrant Agent's negligence or wilful misconduct.
(f) The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or wilful misconduct), after giving thirty (30) days' prior written notice to the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time At least fifteen (15) days prior to timethe date such resignation is to become effective, the Company may provide Warrant Agent with instructions concerning the services performed by Warrant
(g) Any corporation into which the Warrant Agent hereunder. In addition, at or any time Warrant Agent new warrant agent may apply be converted or merged or any corporation resulting from any consolidation to any officer of which the Company for instruction, and may consult with legal counsel for Warrant Agent or Company with respect any new warrant agent shall be a party or any corporation succeeding to the trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any matter arising in connection with the services further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate.
(h) The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damagesother legal entity. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreement16.
Appears in 3 contracts
Sources: Warrant Agreement (Activeworlds Com Inc), Warrant Agreement (Activeworlds Com Inc), Warrant Agreement (Activeworlds Com Inc)
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to time, on demand the validity or value or authorization of the Warrant Agent, its reasonable Certificates or the Charitable Benefit Warrants represented thereby or of any securities or other property delivered upon exercise of any Charitable Benefit Warrant or whether any stock issued upon exercise of any Charitable Benefit Warrant is fully paid and documented out-of-pocket expenses nonassessable.
(including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderb) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Exercise Price, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of fact contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s own gross negligence, bad faith, faith or willful misconduct misconduct.
(which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. c) The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel.
(d) Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board of Directors, certificate, statementPresident, or any Vice President (unless other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselevidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand reasonably believed by it to have knowledge of any event of which it was supposed be genuine.
(e) The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which its reasonable expenses hereunder; the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless from and against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's gross negligence, bad faith or compromise ofwillful misconduct.
(f) The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own gross negligence or willful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect toinability of the Warrant Agent to act as such hereunder, any pending the Company shall appoint in writing a new warrant agent. If the Company shall fail to make such appointment within a period of 15 days after giving notice of such removal or threatened action after it has been notified in writing of such resignation or claim incapacity by the resigning or incapacitated Warrant Agent, then the Company agrees to perform the duties of the Warrant Agent hereunder until a successor Warrant Agent is appointed. After acceptance in respect writing of which indemnification or contribution may be sought hereunder without such appointment by the written consent of new warrant agent is received by the Company, which consent such new warrant agent shall not be unreasonably withheldvested with the same powers, conditioned rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or delayed. From time deed; but if for any reason it shall be necessary or expedient to timeexecute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company may provide and shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with the resigning Warrant Agent with instructions concerning and shall forthwith cause a copy of such notice to be mailed to the services performed by Registered Holder of each Warrant Certificate.
(g) Any corporation into which the Warrant Agent hereunder. In additionor any new warrant agent may be converted or merged, at any time Warrant Agent may apply corporation resulting from any consolidation to any officer of which the Company for instruction, and may consult with legal counsel for Warrant Agent or Company with respect any new warrant agent shall be a party, or any corporation succeeding to the corporate trust business of the Warrant Agent or any matter arising in connection with the services new warrant agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holders of each Warrant Certificate.
(h) The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effect as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company or for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. other legal entity.
(i) The Warrant Agent shall not be held to have notice retain for a period of two years from the date of exercise any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of Warrant Certificate received by it upon such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementexercise.
Appears in 3 contracts
Sources: Charitable Benefit Warrant Agreement (Ixion Biotechnology Inc), Charitable Benefit Warrant Agreement (Ixion Biotechnology Inc), Charitable Benefit Warrant Agreement (Ixion Biotechnology Inc)
Concerning the Warrant Agent. 14.1. The Company agrees that the Warrant Agent is entitledshall act hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive from time make any representations as to timethe validity, on demand value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agentnonassessable.
14.2. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, own negligence or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being soughtmisconduct.
14.3. The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel, power of attorneyAny notice, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the President, certificate, statementits Secretary, or Assistant Secretary (unless other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselevidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine.
14.4. The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action its expenses hereunder in connection therewith unless and until accordance with the fees listed on Schedule I attached hereto; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwillful misconduct.
14.5. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or willful misconduct), after giving 60 days' prior written notice to the Company. At least 30 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of 30 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new Warrant Agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate.
14.6. Any corporation into which the Warrant Agent or Company with respect any new warrant agent may he converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shaft be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Warrant Agent and its agents and subcontractors Any such successor warrant agent shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have promptly cause notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement its succession as warrant agent to be mailed to the contrary, neither party to this Agreement shall be liable Company and to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions Registered Holder of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the each Warrant Agent, the expiration of the Warrants or the termination of this AgreementCertificate.
Appears in 2 contracts
Sources: Warrant Agreement (Advanced BioPhotonics Inc.), Warrant Agreement (Advanced BioPhotonics Inc.)
Concerning the Warrant Agent. The Company agrees that to pay to the Warrant Agent is entitled, from time to time, to reasonable compensation for its all services as agreed in accordance with a mutually agreed upon fee schedule dated on or around the date hereof. The Warrant Agent shall also be entitled to receive rendered by it hereunder and, from time to time, on demand of the Warrant Agent, its reasonable expenses and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against any losscosts, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense expenses (including the reasonable fees and expenses of its legal counsel), losses or damages, which may be paid, incurred or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from any action taken, suffered or omitted by the its actions as Warrant Agent in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreementpursuant hereto; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s its gross negligence, bad faith, or willful misconduct (misconduct. From time to time, the Company may provide the Warrant Agent with instructions concerning the services performed by the Warrant Agent hereunder. In addition, at any time the Warrant Agent may apply to the Chief Executive Officer, the Chief Financial Officer or the Corporate Controller of Company for instruction, and may consult with legal counsel for the Warrant Agent or the Company with respect to any matter arising in connection with the services to be performed by the Warrant Agent under this Agreement. The Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by the Company for any action taken or omitted by the Warrant Agent in reliance upon any instructions by such officers of the Company or upon the advice or opinion of legal counsel for the Company. The Warrant Agent shall not be held to have notice of any change of authority of any such officer of the Company until receipt of written notice thereof from the Company. Promptly after the receipt by the Warrant Agent of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, notify the Company thereof in writing. The Company shall be entitled to participate as its own expense in the defense of any such claim or proceeding, and, if it so elects at any time after receipt of such notice, it may assume the defense of any suit brought to enforce any such claim or of any other legal action or proceeding. For the purposes of this Section 16, the term "expense or loss" means any amount paid or payable to satisfy any claim, demand, action, suit or proceeding settled with the express written consent of the Warrant Agent, and all reasonable costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claim, demand, action, suit, proceeding or investigation. The Warrant Agent shall be responsible for and shall indemnify and hold the Company harmless from and against any and all losses, damages, costs, charges, counsel fees, payments, expenses and liability arising out of or attributable to the Warrant Agent's refusal or failure to comply with the terms of this Agreement, or which gross arise out of Warrant Agent's negligence, bad faith, faith or willful misconduct must be determined by a finalor which arise out of the breach of any representation or warranty of the Warrant Agent hereunder, non-appealable judgment of a court of competent jurisdiction)for which the Warrant Agent is not entitled to indemnification under this Agreement; further provided, thathowever, the that Warrant Agent’s 's aggregate liability during any term of this Agreement with respect to, arising from, or arising in connection with this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges charges, but not including reimbursable expenses, during the twelve 12 months immediately preceding the event for which recovery from the Warrant Agent is being sought. The Warrant Agent shall be authorized and protected and shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in connection with its acceptance and administration of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement, or other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counsel. The Warrant Agent shall not be deemed to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and the Warrant Agent shall be fully protected and shall incur no liability for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, entitled to participate at the Company’s expense, to assume its own expense in the defense of any such claim or proceeding. The Company shall not, without and, if it so elects at any time after receipt of such notice, it may assume the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry defense of any judgment with respect to, suit brought to enforce any pending such claim or threatened of any other legal action or claim in respect proceeding. For the purposes of which indemnification may be sought hereunder (whether this Section 16, the term "expense or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required to indemnify the Warrant Agent for loss" means any amount paid or payable by to satisfy any claim, demand, action, suit or proceeding settled with the Warrant Agent in the settlement or compromise of, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the express written consent of the Company, and all reasonable costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claim, demand, action, suit, proceeding or investigation. The Warrant Agent and the Company agree that all books, records, information and data pertaining to the business of the other party, including inter alia, personal, non-public Holder information, which consent are exchanged or received pursuant to the negotiation or the carrying out of this Agreement shall remain confidential, and shall not be unreasonably withheld, conditioned or delayed. From time to time, the Company may provide Warrant Agent with instructions concerning the services performed by the Warrant Agent hereunder. In addition, at any time Warrant Agent may apply voluntarily disclosed to any officer of the Company for instruction, and may consult with legal counsel for Warrant Agent or Company with respect to any matter arising in connection with the services to be performed by the Warrant Agent under this Agreement. Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any other person, until receipt except as may be required by law, including, without limitation, pursuant to subpoenas from state or federal government authorities (e.g., in divorce and criminal actions). The provisions of written notice thereof from Company. Notwithstanding anything in this Agreement to Section 16 shall survive the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions termination of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge removal of the Warrant Agent, Agent in accordance with the expiration of the Warrants or the termination of this Agreementterms hereof.
Appears in 2 contracts
Sources: Warrant Agreement (LGL Group Inc), Warrant Agreement (LGL Group Inc)
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive make any representations as to the validity, value or authorization of the Warrant Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and nonassessable. The Warrant Agent shall account promptly to the Company with respect to Warrants exercised and concurrently pay the Company, as provided in Section 4, all moneys received by the Warrant Agent upon the exercise of such Warrants. The Warrant Agent shall, upon request of the Company from time to time, on demand deliver to the Company such complete reports of registered ownership of the Warrants and such complete records of transactions with respect to the Warrants and the shares of Common Stock as the Company may request. The Warrant AgentAgent shall also make available to the Company and RAS for inspection by their agents or employees, its reasonable from time to time as either of them may request, such original books of accounts and documented out-of-pocket expenses record (including reasonable and documented counsel fees and other disbursements incurred in original Warrant Certificates surrendered to the preparation, delivery, negotiation, amendment, administration and execution Warrant Agent upon exercise of this Agreement and Warrants) as may be maintained by the exercise and performance of its duties hereunder) Warrant Agent in connection with the services rendered hereunder by issuance and exercise of Warrants hereunder, such inspections to occur at the Warrant Agent's office as specified in Section 17, during normal business hours. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (a) be paid, incurred liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (b) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (c) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, except for its own negligence or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being soughtwilful misconduct. The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel. Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, certificatePresident, statementany Vice President, its Secretary, or Assistant Secretary, (unless other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselevidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine. The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwilful misconduct. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or wilful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate. Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate. The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 2 contracts
Sources: Warrant Agreement (C W Chemica Waste Technologies), Warrant Agreement (C W Chemica Waste Technologies)
Concerning the Warrant Agent. The Company agrees that to pay to the Warrant Agent is entitledAgent, from time to time, to reasonable compensation for its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around the date hereof. The Warrant Agent shall also be entitled to receive schedule, reasonable compensation for all services rendered by it hereunder and, from time to time, on demand of the Warrant Agent, its reasonable expenses and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against any loss, and all liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or cost, expense (including the reasonable fees and expenses of its legal counsel), loss or damage, which may be paid, incurred or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action actions taken, suffered suffered, or omitted to be taken by the Warrant Agent in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreementhereunder; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costsliability, expensesjudgment, losses and damages fine, penalty, claim, demand, settlement, cost, expense, loss or damage incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s its own gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be each as determined by a final, final non-appealable judgment of a court of competent jurisdiction). From time to time, the Company may provide the Warrant Agent with instructions concerning the services performed by the Warrant Agent hereunder. In addition, at any time the Warrant Agent may apply to the Chief Executive Officer, the Chief Financial Officer or the Corporate Controller of Company for instruction, and may consult with legal counsel for the Warrant Agent or the Company with respect to any matter arising in connection with the services to be performed by the Warrant Agent under this Agreement. The Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by the Company for any action taken or omitted by the Warrant Agent in reliance upon any instructions by such officers of the Company or upon the advice or opinion of legal counsel for the Company. The Warrant Agent shall not be held to have notice of any change of authority of any such officer of the Company until receipt of written notice thereof from the Company. To the extent the Company is not also a party to an action, proceeding, suit or claim against the Warrant Agent concerning this Agreement or the performance by the Warrant Agent of its duties hereunder, the Warrant Agent shall, as promptly as practicable, notify the Company thereof in writing in accordance with Section 21 of the assertion of such action, proceeding, suit or claim against the Warrant Agent, after the Warrant Agent has actual notice of such assertion of an action, proceeding, suit or claim or has been served with the summons or other first legal process giving information as to the nature and basis of the action, proceeding, suit or claim; further providedprovided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder, thatexcept to the extent a court of competent jurisdiction determines that such failure actually prejudiced the Company. The Company shall be entitled to participate at its own expense in the defense of any such action, proceeding, suit or claim. The Warrant Agent agrees not to settle any litigation in connection with any action, proceeding, suit or claim with respect to which it may seek indemnification from the Company without the prior written consent of the Company, which consent shall not be unreasonably withheld, delayed or conditioned. Notwithstanding anything to the contrary herein, the Warrant Agent’s aggregate liability during any term of with respect to, arising from, or arising in connection with this Agreement or any Warrant, or from all services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges charges, but not including reimbursable expenses, during the twelve 12 months immediately preceding the event for which recovery from the Warrant Agent is being sought. The Warrant Agent and the Company agree that all books, records, information and data pertaining to the business of the other party, including inter alia, personal, non-public Holder information, which are exchanged or received pursuant to the negotiation or the carrying out of this Agreement shall be authorized and protected remain confidential, and shall incur no liability for not be voluntarily disclosed to any other person, except as may be required by law, including, without limitation, pursuant to subpoenas from state or federal government authorities (e.g., in respect divorce and criminal actions). The provisions of any action takenthis Section 16, suffered or omitted to be taken by it in connection with its acceptance Section 18, and administration Section 30 below shall survive the expiration of the Warrants and the termination of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment resignation, replacement or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement, or other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counsel. The Warrant Agent shall not be deemed to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and the Warrant Agent shall be fully protected and shall incur no liability for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights removal of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required to indemnify the Warrant Agent for any amount paid or payable by the Warrant Agent in the settlement or compromise of, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time to time, the Company may provide Warrant Agent with instructions concerning the services performed by the Warrant Agent hereunder. In addition, at any time Warrant Agent may apply to any officer of the Company for instruction, and may consult with legal counsel for Warrant Agent or Company with respect to any matter arising in connection accordance with the services to be performed by the Warrant Agent under this Agreement. Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreement.terms hereof..
Appears in 2 contracts
Sources: Warrant Agreement (LGL Group Inc), Warrant Agreement (LGL Group Inc)
Concerning the Warrant Agent. The Company agrees that to pay to the Warrant Agent is entitled, from time to time, to reasonable compensation for its all services as agreed in accordance with a mutually agreed upon fee schedule dated on or around the date hereof. The Warrant Agent shall also be entitled to receive rendered by it hereunder and, from time to time, on demand of the Warrant Agent, its reasonable expenses and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against any losscosts, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense expenses (including the reasonable fees and expenses of its legal counsel), losses or damages, which may be paid, incurred or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from any action taken, suffered or omitted by the its actions as Warrant Agent in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreementpursuant hereto; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s its gross negligence, bad faith, or willful misconduct (misconduct. Promptly after the receipt by the Warrant Agent of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, notify the Company thereof in writing. The Company shall be entitled to participate as its own expense in the defense of any such claim or proceeding, and, if it so elects at any time after receipt of such notice, it may assume the defense of any suit brought to enforce any such claim or of any other legal action or proceeding. For the purposes of this Section 15, the term “expense or loss” means any amount paid or payable to satisfy any claim, demand, action, suit or proceeding settled with the express written consent of the Warrant Agent, and all reasonable costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claim, demand, action, suit, proceeding or investigation. The Warrant Agent shall be responsible for and shall indemnify and hold the Company harmless from and against any and all losses, damages, costs, charges, counsel fees, payments, expenses and liability arising out of or attributable to the Warrant Agent’s refusal or failure to comply with the terms of this Agreement, or which gross negligence, bad faith, arise out of Warrant Agent’s negligence or willful misconduct must be determined by a finalor which arise out of the breach of any representation or warranty of the Warrant Agent hereunder, non-appealable judgment of a court of competent jurisdiction)for which the Warrant Agent is not entitled to indemnification under this Agreement; further provided, thathowever, the that Warrant Agent’s aggregate liability during any term of this Agreement with respect to, arising from, or arising in connection with this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges charges, but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. The Warrant Agent shall be authorized and protected and shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in connection with its acceptance and administration of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement, or other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counsel. The Warrant Agent shall not be deemed to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and the Warrant Agent shall be fully protected and shall incur no liability for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, entitled to participate at the Company’s expense, to assume its own expense in the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agentand, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required to indemnify the Warrant Agent for any amount paid or payable by the Warrant Agent in the settlement or compromise of, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time to time, the Company may provide Warrant Agent with instructions concerning the services performed by the Warrant Agent hereunder. In addition, if it so elects at any time Warrant Agent may apply to any officer of the Company for instruction, and may consult with legal counsel for Warrant Agent or Company with respect to any matter arising in connection with the services to be performed by the Warrant Agent under this Agreement. Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion after receipt of such counsel. Warrant Agent shall not be held to have notice notice, it may assume the defense of any change of authority suit brought to enforce any such claim or of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive legal action or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementproceeding.
Appears in 2 contracts
Sources: Warrant Agent Agreement (Advanced Life Sciences Holdings, Inc.), Warrant Agent Agreement (Advanced Life Sciences Holdings, Inc.)
Concerning the Warrant Agent. (a) The Company agrees that to pay to the Warrant Agent is entitled, from time to time, to reasonable compensation for its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around to by the date hereof. The Warrant Agent shall also be entitled to receive from time to time, on demand of Company and the Warrant Agent, its together with reimbursements for reasonable and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder.
(b) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify the Warrant Agent for, and to hold the Warrant Agent harmless against any losscosts, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense expenses (including the reasonable fees and expenses of its legal counsel), losses or damages, which may be paid, incurred or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from any action taken, suffered or omitted by the its actions as Warrant Agent in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreementpursuant hereto, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreementhereunder; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s its own gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be each as determined by a final, final non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. The Warrant Agent shall be authorized and protected and shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in connection with its acceptance and administration of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement, or other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counsel. The Warrant Agent shall not be deemed to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and the Warrant Agent shall be fully protected and shall incur no liability for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation .
(of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claimc) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required to indemnify the Warrant Agent for any amount paid or payable by the Warrant Agent in the settlement or compromise of, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time to time, the Company may provide the Warrant Agent with written instructions concerning the services performed by the Warrant Agent hereunder. In addition, at any time the Warrant Agent may apply to any officer of the Company for written instruction, and may consult with legal counsel for the Warrant Agent or the Company with respect to any matter arising in connection with the services to be performed by the Warrant Agent under this Agreement. The Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken taken, suffered or omitted to be taken by Warrant Agent it in reliance upon any Company instructions or upon the advice or opinion of such counsel. The Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from the Company. .
(d) Notwithstanding anything in this Agreement contained herein to the contrary, neither the Warrant Agent’s aggregate liability during any term of this Agreement with respect to, arising from, or arising in connection with this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Company to the Warrant Agent as fees and charges, but not including reimbursable expenses, during the twelve (12) months immediately preceding the event for which recovery from Warrant Agent is being sought.
(e) In order that the indemnification provisions contained in this Section 13 shall apply, upon the assertion of a claim for which one party may be required to indemnify the other, the party seeking indemnification shall promptly notify the other party of such assertion, and shall keep the other party advised with respect to all material developments concerning such claim. The indemnifying party at its own expense shall have the option to participate with the indemnified party in the defense of such claim or to defend against said claim in its own name or the name of the indemnified party. The indemnified party shall in no case settle any claim or make any compromise in any case in which the indemnifying party may be required to indemnify it except with the indemnifying party’s prior written consent.
(f) Neither party to this Agreement shall be liable to the other party for any consequential, indirect, specialpunitive, punitive special or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This .
(g) The terms of this Section 12 13 shall survive the termination of this Agreement and the resignation or discharge removal of the Warrant Agent, the expiration of the Warrants or the termination of this Agreement.
Appears in 2 contracts
Sources: Warrant Agreement (Seattle Genetics Inc /Wa), Warrant Agreement (Immunomedics Inc)
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive from time make any representations as to timethe validity, on demand value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agentnonassessable. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, except for its own negligence or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being soughtwilful misconduct. The Warrant Agent shall may at any time consult with counsel satisfactory--to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel. Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, certificatePresident, statementany Vice President, its Secretary, or Assistant Secretary, (unless other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselevidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine. The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwilful misconduct. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or wilful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate. Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate. The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 2 contracts
Sources: Warrant Agreement (Infosafe Systems Inc), Warrant Agreement (Infosafe Systems Inc)
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive from time make many representations as to timethe validity, on demand value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agentnonassessable. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, own negligence or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being soughtmisconduct. The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel. Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, certificatePresident, statementany Vice President, its Secretary, or Assistant Secretary, (unless other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselevidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine. The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwillful misconduct. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or willful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court shall be a bank or trust company having a capital and surplus as shown by its last published report to its stockholders, of not less than Ten Million ($10,000,000.00) Dollars, or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith use a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate. Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate. The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 2 contracts
Sources: Warrant Agreement (Rockwell Medical Technologies Inc), Warrant Agreement (Rockwell Medical Technologies Inc)
Concerning the Warrant Agent. The Warrant Agent undertakes the duties and obligations expressly imposed by this Agreement (and no implied duties) upon the following terms and conditions, by all of which the Company agrees that and the Holders, by their acceptance of Warrants, shall be bound:
(a) The Warrant Agent assumes no responsibility for the correctness of any statement contained herein or in the Warrant Certificate, except such as describe the Warrant Agent is entitled, from time to time, to reasonable compensation for its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around the date hereof. any action taken by it.
(b) The Warrant Agent shall also be entitled protected and shall not be responsible for and shall incur no liability to receive from the Company or any Holder for any failure of the Company to comply with the covenants contained in this Agreement or in the Warrants to be complied with by the Company.
(c) The Warrant Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself (through its employees) or by or through its attorneys or agents (which shall not include its employees) and shall not be responsible for the misconduct of any attorney or agent appointed by it without gross negligence or willful misconduct.
(d) The Warrant Agent may consult at any time with legal counsel satisfactory to time, on demand it (who may be counsel for the Company or an employee of the Warrant Agent, its reasonable and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), which may be paid, incurred or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from any action taken, suffered or omitted by the Warrant Agent in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. The Warrant Agent shall be authorized and protected and shall incur no liability for or responsibility to the Company or to any Holder in respect of any action taken, suffered or omitted by it hereunder in accordance with the opinion or the advice of such counsel.
(e) Whenever in the performance of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action hereunder, such fact or matter (unless such evidence in respect thereof be herein specifically prescribed) may be deemed conclusively to be proved and established by a certificate signed by the Chairman of the Board, the President, one of the Vice Presidents, the Treasurer or the Secretary of the Company and delivered to the Warrant Agent; and such certificate shall be full authorization to the Warrant Agent for any action taken or suffered by it in connection with its acceptance and administration under the provisions of this Agreement in reliance upon such certificate.
(f) The Company agrees to pay the Warrant Agent such compensation for all services rendered by the Warrant Agent in the performance of its duties under this Agreement as may be separately agreed in writing, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and other charges of any kind and nature incurred by the exercise Warrant Agent in the performance of its duties under this Agreement (including, without limitation, reasonable fees and expenses of counsel), and to indemnify the Warrant Agent and its agents, employees, directors, officers and affiliates and save it and them harmless against any and all liabilities, losses and expenses, including, without limitation, judgments, costs and counsel fees, for anything done or omitted by the Warrant Agent in the acceptance and performance of its duties under this Agreement, except as a result of the Warrant Agent’s gross negligence or willful misconduct, including, without limitation, the costs and expenses of defending against any claim (whether asserted by the Company, a Holder or any other Person) of liability in the premises including reasonable attorneys’ fees and expenses. The provisions of this paragraph shall survive the resignation or removal of the Warrant Agent and the termination of this Agreement.
(g) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve liability or expense unless the Company or one or more Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs, liabilities and expenses which may be incurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrants or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Holders, as their respective rights or interests may appear.
(h) The Warrant Agent and any stockholder, director, officer or employee (“Related Parties”) of the Warrant Agent may buy, sell or deal in any of the Warrants or other securities of the Company or become pecuniarily interested in any transactions in which the Company may be interested, or contract with or lend money to the Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or such director, officer or employee. Nothing herein shall preclude the Warrant Agent or any Related Party from acting in any other capacity for the Company or for any other legal entity including, without limitation, acting as Transfer Agent to the Company or an affiliate thereof.
(i) The Warrant Agent shall act hereunder solely as agent, and its duties shall be determined solely by the provisions thereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own gross negligence or willful misconduct. No implied duties or obligations shall be read into this Agreement against the Warrant Agent.
(j) The Warrant Agent will be protected and will not incur any liability or responsibility to the Company or to any Holder for any action taken, suffered or omitted by it in reliance upon on any Warrant Certificate instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instructionresolution, directionwaiver, consent, order, certificate, statement, or other paper paper, document or document instrument reasonably believed by it to be genuine and to be duly have been signed, executed and, where necessary, guaranteed, verified sent or acknowledged, presented by the proper Person party or Personsparties.
(k) The Warrant Agent is hereby authorized to request, and directed to accept, instructions with respect to the performance of its duties hereunder from the Chairman of the Board, the President, Chief Financial Officer, Treasurer, any Vice President or otherwise upon the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its duties, and shall not be liable for any action taken or suffered to be taken by it without gross negligence or willful misconduct in accordance with instructions of counsel. The any such officer or officers.
(l) By countersigning Warrant Certificates or by any other act hereunder the Warrant Agent shall not be deemed to have knowledge make any representations as to validity or authorization of the Warrants or the Warrant Certificates (except as to its countersignature thereon) or of any event securities or other property delivered upon exercise or tender of which it was supposed any Warrant, or as to receive notice thereof hereunderthe accuracy of the computation of the Exercise Price or the number or kind or amount of stock or other securities or other property deliverable upon exercise of any Warrant or the correctness of the representations of the Company made in any certifications that the Warrant Agent receives. The Warrant Agent shall not have any duty to calculate or determine any adjustments with respect either to the Exercise Price or the kind and amount of shares or other securities or any property receivable by Holders of Warrants upon the exercise or tender of Warrants required from time to time, and the Warrant Agent shall be fully protected and have no duty or responsibility in determining the accuracy or correctness of any such calculation.
(m) No provision of this Agreement shall incur no liability for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by require the Warrant Agent of actual notice to expend or risk its own funds or otherwise incur any financial liability in the performance of any demand of its duties hereunder or claim in the exercise of its rights if there shall be reasonable grounds for believing that repayment of such funds or the commencement of any action, suit, proceeding adequate indemnification against such risk or investigation (of which the Company liability is not a party), the Warrant Agent shall, if a claim in respect thereof is reasonably assured to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required to indemnify the Warrant Agent for any amount paid or payable by the Warrant Agent in the settlement or compromise of, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time to time, the Company may provide Warrant Agent with instructions concerning the services performed by the Warrant Agent hereunder. In addition, at any time Warrant Agent may apply to any officer of the Company for instruction, and may consult with legal counsel for Warrant Agent or Company with respect to any matter arising in connection with the services to be performed by the Warrant Agent under this Agreement. Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementit.
Appears in 2 contracts
Sources: Warrant Agreement, Warrant Agreement (Lee Enterprises, Inc)
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company and National, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to time, on demand the validity or value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses nonassessable.
(including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderb) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of fact contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross own negligence, bad faith, faith or willful misconduct misconduct.
(which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. c) The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company or for National) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel.
(d) Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statement, order or other paper or document believed demand of the Company shall be sufficiently evidenced by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, an instrument signed by the proper Person Chairman of the Board of Directors, Chief Executive Officer, President or Persons, or otherwise upon the advice of counselany Vice President (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand reasonably believed by it to have knowledge of any event of which it was supposed be genuine.
(e) The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which its reasonable expenses hereunder; the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless from and against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence, bad faith or compromise ofwillful misconduct.
(f) The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own gross negligence or willful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint in writing a new warrant agent. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate.
(g) Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged, any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party, or any corporation succeeding to the services corporate trust business of the Warrant Agent or any new warrant agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holders of each Warrant Certificate.
(h) The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effect as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company or for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. other legal entity.
(i) The Warrant Agent shall not be held to have notice retain for a period of two years from the date of exercise any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of Warrant Certificate received by it upon such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementexercise.
Appears in 2 contracts
Sources: Warrant Agreement (Commodore Separation Technologies Inc), Warrant Agreement (Omega Orthodontics Inc)
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledshall act hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive from time make any representations as to timethe validity, on demand value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agentnonassessable. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, except for its own negligence or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being soughtwilful misconduct. The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel. Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, certificatePresident, statementany Vice President, its Secretary, or Assistant Secretary (unless other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselevidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine. The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwilful misconduct. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or wilful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new Warrant Agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate. Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate. The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 2 contracts
Sources: Warrant Agreement (Fiberchem Inc), Warrant Agreement (Fiberchem Inc)
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive from time make many representations as to timethe validity, on demand value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agentnonassessable. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, own negligence or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being soughtmisconduct. The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company or for the Underwriter) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel. Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, certificatePresident, statementany Vice President, its Secretary, or Assistant Secretary, (unless other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselevidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine. The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement or compromise ofexecution of its duties and powers hereunder except losses, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent expenses and liabilities arising as a result of the Company, which consent shall not be unreasonably withheld, conditioned Warrant Agent's negligence or delayedwillful misconduct. From time to time, In the event of a dispute under this Agreement between the Company may provide Warrant Agent with instructions concerning and the services performed Underwriter regarding proceeds received by the Warrant Agent hereunder. In additionfrom the exercise of the Warrants, at any time the Warrant Agent shall have the right, but not the obligation, to bring an interpleader action to resolve such dispute. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or willful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or any inability of the Warrant Agent to act as such hereunder, the Company shall appoint a new warrant agent in writing. If the Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent, then the Registered Holder of any Warrant Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court shall be a bank or trust company having a capital and surplus as shown by its last published report to its stockholders, of not less than Ten Million ($10,000,000.00) Dollars, or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate. Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate. The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 2 contracts
Sources: Warrant Agreement (Community Care Services Inc), Warrant Agreement (Intercorp Excelle Inc)
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive make any representations as to the validity, value or authorization of the Warrant Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and nonassessable. The Warrant Agent shall account promptly to the Company with respect to Warrants exercised and concurrently pay the Company, as provided in Section 4, all moneys received by the Warrant Agent upon the exercise of such Warrants. The Warrant Agent shall, upon request of the Company from time to time, on demand deliver to the Company such complete reports of registered ownership of the Warrants and such complete records of transactions with respect to the Warrants and the shares of Common Stock as the Company may request. The Warrant AgentAgent shall also make available to the Company and R ▇▇▇▇▇▇ for inspection by their agents or employees, its reasonable from time to time as either of them may request, such original books of accounts and documented out-of-pocket expenses records (including reasonable and documented counsel fees and other disbursements incurred in original Warrant Certificates surrendered to the preparation, delivery, negotiation, amendment, administration and execution Warrant Agent upon exercise of this Agreement and Warrants) as may be maintained by the exercise and performance of its duties hereunder) Warrant Agent in connection with the services rendered hereunder by issuance and exercise of Warrants hereunder, such inspections to occur at the Warrant Agent's office as specified in Section 8, during normal business hours. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (I) be paid, incurred liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, own negligence or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being soughtmisconduct. The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the written opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel. Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, certificatePresident, statementany Vice President, its Secretary, or Assistant Secretary, (unless other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselevidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine. The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwillful misconduct. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or willful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect toinability of the Warrant Agent to act as such hereunder, the Company shall appoint a new warrant agent in writing. If the Company fails to make an appointment within a period of 15 days after it has been notified in writing of the resignation, the Registered Holder of any pending or threatened action or claim in respect Warrant Certificate may apply to a court of which indemnification or contribution may be sought hereunder without competent jurisdiction to appoint a new warrant agent. When the new warrant agent's written consent of acceptance is received by the Company, which consent the new warrant agent will be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall not be unreasonably withheldnecessary or expedient to execute and deliver any further assurance, conditioned conveyance, act or delayed. From time to timedeed, the same shall be done at the expense of the Company may provide and shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with the resigning Warrant Agent with instructions concerning and shall forthwith cause a copy of such notice to be mailed to the services performed by Registered Holder of each Warrant Certificate. Any corporation into which the Warrant Agent hereunder. In addition, at or any time Warrant Agent new warrant agent may apply be converted or merged or any corporation resulting from any consolidation to any officer of which the Company for instruction, and may consult with legal counsel for Warrant Agent or Company with respect any new warrant agent shall be a party shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to any matter arising in connection with the services to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate. The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 2 contracts
Sources: Warrant Agreement (EPIC Medicor Corp), Warrant Agreement (EPIC Medicor Corp)
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts ---------------------------- hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive from time make any representations as to timethe validity, on demand value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agentnonassessable. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, except for its own negligence or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being soughtwilful misconduct. The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel. Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, certificate, statementPresident, or other paper or document believed by it to be genuine any Vice President and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Personsits Secretary, or otherwise upon the advice of counselAssistant Secretary, (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine. The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall reasonable compensation for its services hereunder and to reimburse it for its reasonable expenses hereunder as governed by a separate agreement to be fully protected and shall incur no liability for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by entered into between the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against and the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required it further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and reasonable counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwilful misconduct. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or wilful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate. Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate. The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 2 contracts
Sources: Warrant Agreement (Sparta Pharmaceuticals Inc), Warrant Agreement (Sparta Pharmaceuticals Inc)
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates, or by any other act hereunder, be entitled deemed to receive from time make any representations as to timethe validity, on demand value or authorization of the Warrant Agent, its reasonable Certificates or the Class D Warrants represented thereby or of any securities or other property delivered upon exercise of any Class D Warrant or whether any stock issued upon exercise of any Class D Warrant is fully paid and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agentnonassessable. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), which may be paid, incurred or suffered by or to which it determine whether any fact exists that may become subjectrequire any such adjustments, arising from or out ofwith respect to the nature or extent of any such adjustment, directly when made, or indirectly, with respect to the method employed in making the same. It shall not (i) be liable for any claims recital or liability resulting from statement of facts contained herein or for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, own negligence or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being soughtmisconduct. The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel. Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, certificate, statementPresident, or other paper or document believed by it to be genuine any Vice President and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or PersonsSecretary, or otherwise upon the advice of counselany Assistant Secretary (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine. The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall reasonable compensation for its services hereunder and to reimburse it for its reasonable expenses hereunder as governed by a separate agreement to be fully protected and shall incur no liability for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by entered into between the Warrant Agent of actual notice of any demand or claim or and the commencement of any action, suit, proceeding or investigation (of which Company; the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and reasonable counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwillful misconduct. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or willful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holders of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company for instructionor by such a court, shall be a bank or trust company having capital and may consult with legal counsel for Warrant Agent surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or Company with respect to any matter arising a stock transfer company. After acceptance in connection writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the services to be performed by the Warrant Agent under this Agreement. Warrant Agent same powers, rights, duties and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even responsibilities as if that party has it had been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the expiration same shall be done at the expense of the Warrants or Company and shall be legally and validly executed and delivered by the termination of this Agreement.resigning Warrant
Appears in 2 contracts
Sources: Warrant Agreement (Keys Foundation), Warrant Agreement (Diversified Fund LTD)
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company and the Representative, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to time, on demand the validity or value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses nonassessable.
(including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderb) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustment, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same, it shall not (i) be paid, incurred liable for any recital or suffered by statement of fact contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s own gross negligence, bad faith, negligence or willful misconduct misconduct.
(which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. c) The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel.
(d) Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statement, order or other paper or document believed demand of the Company shall be sufficiently evidenced by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, an instrument signed by the proper Person Chairman of the Board of Directors, Vice-Chairman or Persons, or otherwise upon the advice of counselSecretary (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand.
(e) The Company agrees to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which its reasonable expenses hereunder; the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement or compromise ofexecution of its duties and powers hereunder except losses, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent expenses and liabilities arising as a result of the Company, which consent shall not be unreasonably withheld, conditioned Warrant Agent's gross negligence or delayed. From time to time, the Company may provide willful misconduct.
(f) The Warrant Agent with instructions concerning may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the services performed by Warrant Agent's own negligence or willful misconduct), after giving 30 days prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent hereundershall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. In additionUpon such resignation the Company shall appoint in writing a new warrant agent. If the Company shall fail to make such appointment within a period of 30 days after it has been notified in writing of such resignation by the resigning Warrant Agent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company doing business in New York, New York. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the warrant agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate.
(g) Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged, any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party, or any corporation succeeding to the services corporate trust business of the Warrant Agent or any new warrant agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holders of each Warrant Certificate.
(h) The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effect as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company or for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. other legal entity.
(i) The Warrant Agent shall not be held retain for a period of two years from the date of exercise any Warrant Certificate received by it upon such exercise, marked to have notice of any change of authority of any person, until receipt of written notice indicate its cancellation thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This accordance with Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreement6(e) hereof.
Appears in 2 contracts
Sources: Warrant Agreement (Harvey Electronics Inc), Warrant Agreement (Harvey Electronics Inc)
Concerning the Warrant Agent. The Company agrees that to pay to the Warrant Agent is entitled, from time to time, to reasonable compensation for its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around the date hereof. The Warrant Agent shall also be entitled to receive from time to time, on demand of the Warrant Agent, reasonable compensation for all services rendered by it hereunder and also its reasonable and documented out-of-pocket expenses (expenses, including reasonable and documented counsel fees fees, and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) . The Company also agrees to indemnify the Warrant Agent for, and to hold it harmless against, any loss, liability or expense, incurred without gross negligence, bad faith or willful misconduct on the part of the Warrant Agent, arising out of or in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), which may be paid, incurred or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from any action taken, suffered or omitted by the Warrant Agent in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. The Warrant Agent shall be authorized and protected and shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in connection with its acceptance and administration of this Agreement and Agreement. Section 19. Merger or Consolidation or Change of Name of Warrant Agent Any corporation into which the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment Agent may be merged or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statementwith which it may be consolidated, or other paper any corporation resulting from any merger or document believed by it consolidation to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counsel. The Warrant Agent shall not be deemed to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and the Warrant Agent shall be fully protected and shall incur no liability for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), or any corporation succeeding to the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent corporate trust business of the Warrant Agent, effect shall be the settlement or compromise of, or consent successor to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required to indemnify the Warrant Agent hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto, provided that such corporation would be eligible for any amount paid or payable by appointment as a successor warrant agent under the provisions of Section 21 hereof. In case at the time such successor to the Warrant Agent in shall succeed to the settlement or compromise of, or entry into any judgment with respect toagency created by this Agreement, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent of the CompanyWarrant Certificates shall have been countersigned but not delivered, which consent shall not be unreasonably withheld, conditioned or delayed. From time any such successor to time, the Company may provide Warrant Agent with instructions concerning the services performed by the Warrant Agent hereundermay adopt the countersignature of the original Warrant Agent and deliver such Warrant Certificates so countersigned; and in case at that time any of the Warrant Certificates shall not have been countersigned, any successor to the Warrant Agent may countersign such Warrant Certificates either in the name of the predecessor Warrant Agent or in the name of the successor Warrant Agent; and in all such cases such Warrant Certificates shall have the full force provided in the Warrant Certificates and in this Agreement. In addition, case at any time the name of the Warrant Agent shall be changed and at such time any of the Warrant Certificates shall have been countersigned but not delivered, the Warrant Agent may apply to adopt the countersignature under its prior name and deliver Warrant Certificates so countersigned; and in case at that time any officer of the Company for instructionWarrant Certificates shall not have been countersigned, and may consult with legal counsel for Warrant Agent or Company with respect to any matter arising in connection with the services to be performed by the Warrant Agent under may countersign such Warrant Certificates either in its prior name or in its changed name; and in all such cases such Warrant Certificates shall have the full force provided in the Warrant Certificates and in this Agreement. Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreement20.
Appears in 2 contracts
Sources: Warrant Agreement (Uqm Technologies Inc), Warrant Agreement (Uqm Technologies Inc)
Concerning the Warrant Agent. The Company agrees that to pay to the Warrant Agent is entitled, from time to time, to reasonable compensation for its all services as agreed in accordance with a mutually agreed upon fee schedule dated on or around the date hereof. The Warrant Agent shall also be entitled to receive rendered by it hereunder and, from time to time, on demand of the Warrant Agent, its reasonable expenses and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify the Warrant Agent for, and to hold the Warrant Agent it harmless against against, any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost liability or expense (including the reasonable fees and expenses of legal counsel), which may be paidexpense, incurred without gross negligence, bad faith or suffered by or to which it may become subjectwillful misconduct on the part of the Warrant Agent, arising from or out of, directly or indirectly, any claims or liability resulting from any action taken, suffered for anything done or omitted by the Warrant Agent in connection with the execution, acceptance, administration, exercise acceptance and performance administration of its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or in the premises. The costs and expenses of enforcing its rights under this right of indemnification shall also be paid by the Company. The indemnification provided for hereunder shall survive the expiration of the Warrants and termination of this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. The Warrant Agent may conclusively rely upon and shall be authorized and protected and shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in connection with its acceptance and administration of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate or certificate for Common Stock or for other securities of the Company, instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement, or other paper or document reasonably believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person person or Persons, or otherwise upon the advice of counsel. The Warrant Agent shall not be deemed to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and the Warrant Agent shall be fully protected and shall incur no liability for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required to indemnify the Warrant Agent for any amount paid or payable by the Warrant Agent in the settlement or compromise of, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time to time, the Company may provide Warrant Agent with instructions concerning the services performed by the Warrant Agent hereunder. In addition, at any time Warrant Agent may apply to any officer of the Company for instruction, and may consult with legal counsel for Warrant Agent or Company with respect to any matter arising in connection with the services to be performed by the Warrant Agent under this Agreement. Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Companypersons. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement in no event shall the Warrant Agent be liable to the other party for any consequential, indirect, special, punitive indirect or incidental damages under any provisions of this Agreement consequential loss or for any consequential, indirect, punitive, special or incidental damages arising out damage of any act or failure kind whatsoever (including but not limited to act hereunder lost profits) regardless of the form of the action, even if that party the Warrant Agent has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation loss or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementdamage.
Appears in 2 contracts
Sources: Warrant Agreement (Northwestern Corp), Warrant Agreement (Penn Traffic Co)
Concerning the Warrant Agent. 15.1. The Company agrees that the Warrant Agent is entitledshall act hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive from time make any representations as to timethe validity, on demand value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agentnonassessable.
15.2. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, except for its own negligence or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being soughtwilful misconduct.
15.3. The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel. Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the President, certificate, statementits Secretary, or Assistant Secretary (unless other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselevidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine.
15.4. The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action its expenses hereunder in connection therewith unless and until accordance with the fees listed on Schedule I attached hereto; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwillful misconduct.
15.5. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or wilful misconduct), after giving 60 days' prior written notice to the Company. At least 30 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of 30 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new Warrant Agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate.
15.6. Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Warrant Agent and its agents and subcontractors Any such successor warrant agent shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have promptly cause notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement its succession as warrant agent to be mailed to the contrary, neither party to this Agreement shall be liable Company and to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions Registered Holder of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the each Warrant Agent, the expiration of the Warrants or the termination of this AgreementCertificate.
Appears in 2 contracts
Sources: Warrant Agreement (Waverider Communications Inc), Warrant Agreement (Waverider Communications Inc)
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined by solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Class A Warrant Certificates, or by any other act hereunder, be entitled deemed to receive from time make any representation as to timethe validity, on demand or value, or authorization of the Class A Warrant AgentCertificates, its reasonable or the Class A Warrants represented thereby, or of any securities, or other property delivered upon exercise of any Class A Warrant is fully paid and documented outnon-of-pocket expenses assessable.
(including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderb) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Class A Warrant Certificates to make or cause to be made any adjustment of the Purchase Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustment, or with respect to the nature or extent of any such adjustment when made, or with respect to the method employed in making the same. It shall not (i) be paidliable for any recital, incurred or suffered by statement of fact contained herein, or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Class A Warrant Certificate, or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Class A Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing own its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s own gross negligence, bad faith, negligence or willful misconduct misconduct.
(which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. c) The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it good faith in connection accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel.
(d) Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statement, order or other paper or document believed demand of the Company shall be sufficiently evidenced by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, an instrument signed by the proper Person Chairman of the Board of Directors, President or Persons, or otherwise upon the advice of counselany Vice President (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand.
(e) The Company agrees to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which its reasonable expenses hereunder; the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and hold harmless against any and all losses, expenses and liabilities, including judgments, costs and Counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement or compromise ofexecution of its duties and powers hereunder except losses, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent expenses and liabilities arising as a result of the Company, which consent shall not be unreasonably withheld, conditioned Warrant Agent's gross negligence or delayed. From time to time, the Company may provide willful misconduct.
(f) The Warrant Agent with instructions concerning may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the services performed by Warrant Agent's own gross negligence or willful misconduct), after giving thirty (30) days prior written notice to the Company. At least fifteen (15) days prior to the date such resignation is to become effective, the Warrant Agent hereundershall cause a copy of such notice of resignation to, be mailed to the Registered Holder of each notify the Company in writing of such fact and of the number Class A Warrant Certificate at the Company's expense. In additionUpon such resignation the Company shall appoint in writing a new warrant agent. If the Company shall fail to make such appointment within a period of thirty (30) days after it has been notified in writing of such resignation by the resigning Warrant Agent, at then the Registered Holder of any time Class A Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than ten million dollars ($10,000,000) or a stock transfer company doing business in New York, New York. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the warrant agent without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instructionand shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment, the Company shall file, notice thereof with the resigning Warrant Agent and may consult with legal counsel for shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Class A Warrant Certificate.
(g) Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged, any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party, or any corporation succeeding to the services corporate trust business of the Warrant Agent or any new warrant agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holders of each Class A Warrant Certificate.
(h) The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Class A Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effect as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 2 contracts
Sources: Warrant Agreement (H Quotient Inc), Warrant Agreement (H Quotient Inc)
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates, or by any other act hereunder, be entitled deemed to receive from time make any representations as to timethe validity, on demand value or authorization of the Warrant Agent, its reasonable Certificates or the Class C Warrants represented thereby or of any securities or other property delivered upon exercise of any Class C Warrant or whether any stock issued upon exercise of any Class C Warrant is fully paid and documented out-of-pocket expenses nonassessable.
(including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereundera) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), which may be paid, incurred or suffered by or to which it determine whether any fact exists that may become subjectrequire any such adjustments, arising from or out ofwith respect to the nature or extent of any such adjustment, directly when made, or indirectly, with respect to the method employed in making the same. It shall not (i) be liable for any claims recital or liability resulting from statement of facts contained herein or for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, own negligence or willful misconduct misconduct.
(which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. b) The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel.
(c) Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, certificate, statementPresident, or other paper or document believed by it to be genuine any Vice President and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or PersonsSecretary, or otherwise upon the advice of counselany Assistant Secretary (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine.
(d) The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall reasonable compensation for its services hereunder and to reimburse it for its reasonable expenses hereunder as governed by a separate agreement to be fully protected and shall incur no liability for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by entered into between the Warrant Agent of actual notice of any demand or claim or and the commencement of any action, suit, proceeding or investigation (of which Company; the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and reasonable counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwillful misconduct.
(e) The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or willful misconduct), after giving thirty (30) days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holders of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of fifteen (15) days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company for instructionor by such a court, shall be a bank or trust company having capital and may consult with legal counsel for Warrant Agent surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or Company with respect to any matter arising a stock transfer company. After acceptance in connection writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the services to be performed by the Warrant Agent under this Agreement. Warrant Agent same powers, rights, duties and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even responsibilities as if that party has it had been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the expiration same shall be done at the expense of the Warrants or Company and shall be legally and validly executed and delivered by the termination resigning Warrant Agent. Not later than the effective date of this Agreementany such appointment, the Company shall file notice thereof with the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate.
Appears in 2 contracts
Sources: Warrant Agreement (Procept Inc), Warrant Agreement (Procept Inc)
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive from time make any representations as to timethe validity, on demand value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution nonassesable. The Warrant Agent shall not at any time be under any duty or responsibility to any holder of this Agreement and the exercise and performance Warrant Certificates to make or cause to be made any adjustment of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees Price provided in this Agreement, or to indemnify and to hold the Warrant Agent harmless against determine whether any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the property party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, except for its own negligence or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being soughtwilful misconduct. The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel. Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, certificatePresident, statementany Vice President, its Secretary, or Assistant Secretary, (unless other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselevidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge be genuine. The Company agrees to pay the Warrant Agent reasonable compensation for its services hereunder and to reimburse it for its reasonable expenses hereunder (in each case, as indicated in writing prior to or on the date of this Agreement, or prior to the date of such subsequent services or the incurrence of such expenses and agreed to by the Company); it further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for anything done or omitted by the Warrant Agent in execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence or wilful misconduct. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or wilful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or any inability of the Warrant Agent to act as such hereunder, the Company shall appoint a new warrant agent in writing. If the Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent, then the Holder of any event Warrant Certificate may apply to any court of which competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company that is a registered transfer agent under the Securities Exchange Act of 1934. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it was supposed had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to receive execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company and shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof hereunder, with the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Holder of each Warrant Certificate. Any corporation into which the Warrant Agent or any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any new warrant agent shall be a party or any corporation succeeding to the trust business of the Warrant Agent shall be fully protected and shall incur no liability for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of a successor warrant agent under this Agreement without any demand or claim or the commencement of any actionfurther act, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure such corporation is eligible for appointment as successor to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required to indemnify the Warrant Agent for any amount paid or payable by the Warrant Agent in the settlement or compromise of, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time to time, the Company may provide Warrant Agent with instructions concerning the services performed by the Warrant Agent hereunder. In addition, at any time Warrant Agent may apply to any officer of the Company for instruction, and may consult with legal counsel for Warrant Agent or Company with respect to any matter arising in connection with the services to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate. The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 2 contracts
Sources: Warrant Agreement (Forcenergy Inc), Warrant Agreement (Forcenergy Inc)
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to time, on demand the validity or value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses nonassessable.
(including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderb) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of fact contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross own negligence, bad faith, faith or willful misconduct misconduct.
(which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. c) The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company or for WAS) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel.
(d) Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statement, order or other paper or document believed demand of the Company shall be sufficiently evidenced by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, an instrument signed by the proper Person Chairman of the Board of Directors, Chief Executive Officer, President or Persons, or otherwise upon the advice of counselany Vice President (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand reasonably believed by it to have knowledge of any event of which it was supposed be genuine.
(e) The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which its reasonable expenses hereunder; the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless from and against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder EXCEPT losses, expenses and liabilities arising as a result of the Warrant Agent's negligence, bad faith or compromise ofwillful misconduct.
(f) The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own gross negligence or willful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint in writing a new warrant agent. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate.
(g) Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged, any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party, or any corporation succeeding to the services corporate trust business of the Warrant Agent or any new warrant agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragrah. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holders of each Warrant Certificate.
(h) The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effect as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company or for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. other legal entity.
(i) The Warrant Agent shall not be held to have notice retain for a period of two years from the date of exercise any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of Warrant Certificate received by it upon such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementexercise.
Appears in 2 contracts
Sources: Warrant Agreement (Lasik America Inc), Warrant Agreement (Lasik America Inc)
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledshall act hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date hereofprovisions of this Agreement. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive from time make any representations as to timethe validity, on demand value or authorization of the Warrant AgentCertificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and nonassessable.
(b) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, its reasonable and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred or to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agentsame. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not (i) be liable for any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost recital or expense (including the reasonable fees and expenses statement of legal counsel), which may be paid, incurred facts contained herein or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s own gross negligence, bad faith, negligence or willful misconduct misconduct.
(which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. c) The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, such counsel.
(d) Any notice, instructionstatement, instrument, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, certificatePresident, statementany Vice President, its Secretary, or Assistant Secretary, unless other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselevidence in respect thereof is specifically prescribed in this Agreement. The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine.
(e) The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent its reasonable expenses hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses, and liabilities arising as a result of the Warrant Agent's gross negligence or compromise ofwillful misconduct.
(f) The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own gross negligence or willful misconduct), after giving thirty (30) days' prior written notice to the Company. At least fifteen (15) days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such under this Agreement, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of fifteen (15) days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be either (i) a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or (ii) a stock transfer company. After the Company receives acceptance in writing of such appointment by the new warrant agent, such new warrant agent shall be vested with the same powers, rights, duties, and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason, it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instructionand shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment, the Company shall file notice thereof with the resigning Warrant Agent and may consult with legal counsel for shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate.
(g) Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate.
(h) The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 2 contracts
Sources: Warrant Agreement (Radyne Comstream Inc), Warrant Agreement (Radyne Comstream Inc)
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive from time make any representations as to timethe validity, on demand value, or authorization of the Warrant AgentCertificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and nonassessable.
(b) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, or to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be liable for any recital or statement of facts contained herein or for any action taken, suffered, or omitted by it in reliance on any warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its reasonable covenants and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred obligations contained in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderor in any Warrant Certificate, or (iii) be liable for any act or omission in connection with the services rendered hereunder by the Warrant Agent. this Agreement except for its own gross negligence or wilful misconduct.
(c) The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against may at any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense time consult with counsel satisfactory to it (including the reasonable fees and expenses of legal counsel), which who may be paid, incurred counsel for the Company) and shall incur no liability or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from responsibility for any action taken, suffered or omitted by the Warrant Agent it in connection good faith in accordance with the executionopinion or advice of such counsel.
(d) Any notice, acceptancestatement, administrationinstruction, exercise and performance of its duties under this Agreementrequest, including the reasonable costs and expenses of defending against any claim of liability arising therefromdirection, directly or indirectlyorder, or demand of enforcing the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, President, any Vice President, its rights under this Agreement; providedSecretary, that such covenant and agreement does not extend toor Assistant Secretary, and the (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event liable for which recovery from Warrant Agent is being sought. The Warrant Agent shall be authorized and protected and shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in connection accordance with its acceptance and administration of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statementorder, or other paper or document demand believed by it to be genuine and genuine.
(e) The Company agrees to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counsel. The Warrant Agent shall not be deemed to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses, and liabilities, including judgments, costs, and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses, and liabilities arising as a result of the Warrant Agent's gross negligence or compromise ofwilful misconduct.
(f) The Warrant Agent may resign its duties and be discharged from ail further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or wilful misconduct), after giving 60 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of 30 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties, and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act, or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act, or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate.
(g) Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate.
(h) The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 2 contracts
Sources: Warrant Agreement (Aviation Holdings Group Inc/Fl), Warrant Agreement (Aviation Holdings Group Inc/Fl)
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company and the Underwriter, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to time, on demand the validity or value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses nonassessable.
(including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderb) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustment, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of fact contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except fo r its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s own gross negligence, bad faith, negligence or willful misconduct misconduct.
(which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. c) The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel.
(d) Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statement, order or other paper or document believed demand of the Company shall be sufficiently evidenced by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, an instrument signed by the proper Person Chairman of the Board of Directors, President or Persons, or otherwise upon the advice of counselany Vice President (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand.
(e) The Company agrees to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which its reasonable expenses hereunder; the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement or compromise ofexecution of its duties and powers hereunder except losses, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent expenses and liabilities arising as a result of the Company, which consent shall not be unreasonably withheld, conditioned Warrant Agents gross negligence or delayed. From time to time, the Company may provide willful misconduct.
(f) The Warrant Agent with instructions concerning may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the services performed by Warrant Agents own gross negligence or willful misconduct), after giving 30 days prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent hereundershall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. In additionUpon such resignation the Company shall appoint in writing a new warrant agent. If the Company shall fail to make such appointment within a period of 30 days after it has been notified in writing of such resignation by the resigning Warrant Agent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company doing business in New York. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the warrant agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate.
(g) Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged, any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party, or any corporation succeeding to the services corporate trust business of the Warrant Agent or any new warrant agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holders of each Warrant Certificate.
(h) The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effect as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company or for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. other legal entity.
(i) The Warrant Agent shall not be held to have notice retain for a period of two years from the date of exercise any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of Warrant Certificate received by it upon such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementexercise.
Appears in 2 contracts
Sources: Underwriter's Warrant Agreement (Xetal Inc), Warrant Agreement (Xetal Inc)
Concerning the Warrant Agent. The Company agrees that to pay to the Warrant Agent is entitled, from time to time, to reasonable compensation for its all services as agreed in accordance with a mutually agreed upon fee schedule dated on or around the date hereof. The Warrant Agent shall also be entitled to receive rendered by it hereunder and, from time to time, on demand of the Warrant Agent, its reasonable expenses and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against any losscosts, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense expenses (including the reasonable fees and expenses of its legal counsel), losses or damages, which may be paid, incurred or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from any action taken, suffered or omitted by the its actions as Warrant Agent in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreementpursuant hereto; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s its gross negligence, bad faith, or willful misconduct (misconduct. Promptly after the receipt by the Warrant Agent of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, notify the Company thereof in writing. The Company shall be entitled to participate as its own expense in the defense of any such claim or proceeding, and, if it so elects at any time after receipt of such notice, it may assume the defense of any suit brought to enforce any such claim or of any other legal action or proceeding. For the purposes of this Section 188, the term “expense or loss” means any amount paid or payable to satisfy any claim, demand, action, suit or proceeding settled with the express written consent of the Warrant Agent, and all reasonable costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claim, demand, action, suit, proceeding or investigation. The Warrant Agent shall be responsible for and shall indemnify and hold the Company harmless from and against any and all losses, damages, costs, charges, counsel fees, payments, expenses and liability arising out of or attributable to the Warrant Agent’s refusal or failure to comply with the terms of this Agreement, or which gross negligence, bad faith, arise out of Warrant Agent’s negligence or willful misconduct must be determined by a finalor which arise out of the breach of any representation or warranty of the Warrant Agent hereunder, non-appealable judgment of a court of competent jurisdiction)for which the Warrant Agent is not entitled to indemnification under this Agreement; further provided, thathowever, the that Warrant Agent’s aggregate liability during any term of this Agreement with respect to, arising from, or arising in connection with this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges charges, but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. The Warrant Agent shall be authorized and protected and shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in connection with its acceptance and administration of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement, or other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counsel. The Warrant Agent shall not be deemed to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and the Warrant Agent shall be fully protected and shall incur no liability for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, entitled to participate at the Company’s expense, to assume its own expense in the defense of any such claim or proceeding. The Company shall not, without and, if it so elects at any time after receipt of such notice, it may assume the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry defense of any judgment with respect to, suit brought to enforce any pending such claim or threatened of any other legal action or claim in respect proceeding. For the purposes of which indemnification may be sought hereunder (whether this Section 18, the term “expense or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required to indemnify the Warrant Agent for loss” means any amount paid or payable by to satisfy any claim, demand, action, suit or proceeding settled with the Warrant Agent in the settlement or compromise of, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the express written consent of the Company, which consent shall and all reasonable costs and expenses, including, but not be unreasonably withheldlimited to, conditioned reasonable counsel fees and disbursements, paid or delayed. From time to timeincurred in investigating or defending against any such claim, the Company may provide Warrant Agent with instructions concerning the services performed by the Warrant Agent hereunder. In additiondemand, at any time Warrant Agent may apply to any officer of the Company for instructionaction, and may consult with legal counsel for Warrant Agent suit, proceeding or Company with respect to any matter arising in connection with the services to be performed by the Warrant Agent under this Agreement. Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementinvestigation.
Appears in 2 contracts
Sources: Warrant Agency Agreement (T3 Motion, Inc.), Warrant Agency Agreement (T3 Motion, Inc.)
Concerning the Warrant Agent. The Company agrees that 7.1. Any instructions given to the Warrant Agent is entitledorally, from time to timeas permitted by any provision of this Warrant Agreement, to reasonable compensation for its services shall be confirmed in writing by the Company as agreed in accordance with a mutually agreed upon fee schedule dated on or around the date hereofsoon as practicable. The Warrant Agent shall also not be entitled liable or responsible and shall be fully authorized and protected for acting, or failing to receive act, in accordance with any oral instructions which do not conform with the written confirmation received in accordance with this Section 7.1.
7.2. The Company agrees to pay to the Warrant Agent reasonable compensation for all services rendered by the Warrant Agent under this Warrant Agreement in accordance with a fee schedule to be mutually agreed upon and, from time to time, on demand of the Warrant Agent, to reimburse the Warrant Agent for all of its reasonable expenses and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Warrant Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify the Warrant Agent for, and to hold the Warrant Agent it harmless against against, any and all loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including including, without limitation, the reasonable fees and expenses of legal counsel), which ) that may be paid, incurred or suffered by it, or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from any action taken, suffered or omitted by the Warrant Agent in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s without gross negligence, bad faith, faith or willful misconduct on the part of the Warrant Agent (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, thatfor any action taken, suffered, or omitted to be taken by the Warrant Agent in connection with the execution, acceptance, administration, exercise and performance of its duties under this Warrant Agreement, including the costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or enforcing its rights hereunder. Sections 7.1 through and including Section 7.7 shall survive the expiration of the warrants and the termination of this Warrant Agreement and the resignation, replacement or removal of the Warrant Agent’s aggregate liability during any term . The costs and expenses incurred in enforcing this right of this Agreement whether in contract, or in tort, or otherwise, is limited to, and indemnification shall not exceed, be paid by the Company.
7.3. All amounts paid under this Agreement owed by the Company to the Warrant Agent as under this Warrant Agreement are due within 30 days of the Company’s receipt of an invoice. Delinquent payments are subject to a late payment charge of one and one-half percent (1.5%) per month commencing 45 days from the invoice date. The Company agrees to reimburse the Warrant Agent for any attorney’s fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from any other costs associated with collecting delinquent payments. No provision of this Warrant Agreement shall require Warrant Agent is being soughtto expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties under this Warrant Agreement or in the exercise of its rights.
7.4. The As agent for the Company hereunder, the Warrant Agent:
(a) shall have no duties or obligations other than those specifically set forth herein or as may subsequently be agreed to in writing by the Warrant Agent and the Company;
(b) shall be regarded as making no representations and having no responsibilities as to the validity, sufficiency, value, or genuineness of the Warrants or any Warrant Shares;
(c) shall not be obligated to take any legal action hereunder; if, however, the Warrant Agent determines in its sole discretion to take any legal action hereunder, and where the taking of such action might, in its judgment, subject or expose it to any expense or liability it shall not be required to act unless it has been furnished with an indemnity reasonably satisfactory to it;
(d) may rely on and shall be fully authorized and protected and shall incur no liability for in acting or in respect of any action taken, suffered or omitted failing to be taken by it in connection with its acceptance and administration of this Agreement and the exercise and performance of its duties hereunder in reliance act upon any Warrant Certificate instrument of assignment or transfercertificate, power of attorneyinstrument, endorsementopinion, affidavitnotice, letter, noticetelegram, instructiontelex, directionfacsimile transmission, consent, certificate, statement, email or other paper document or document security delivered to the Warrant Agent and believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, have been signed by the proper Person party or Personsparties;
(e) shall not be liable or responsible for any recital or statement contained in this Warrant Agreement, any Warrant Certificate, the Registration Statement or any other documents relating hereto or thereto;
(f) shall not be liable or responsible for any failure on the part of the Company to comply with any of its covenants and obligations relating to the Warrants, including without limitation obligations under applicable securities laws;
(g) may rely on and shall be fully authorized and protected in acting or failing to act upon the written, telephonic or oral instructions with respect to any matter relating to its duties as Warrant Agent covered by this Warrant Agreement (or supplementing or qualifying any such actions) of officers of the Company, and is hereby authorized and directed to accept instructions with respect to the performance of its duties hereunder from the Company or counsel to the Company, and may apply to the Company, for advice or instructions in connection with the Warrant Agent’s duties hereunder, and the Warrant Agent shall not be liable for any delay in acting while waiting for those instructions; any applications by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent under this Warrant Agreement and the date on or after which such action shall be taken or such omission shall be effective; the Warrant Agent shall not be liable for any action taken by, or otherwise upon omission of, the Warrant Agent in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than five (5) Business Days after the date such application is sent to the Company, unless the Company shall have consented in writing to any earlier date) unless prior to taking or omitting to take, as the case may be, any such action, the Warrant Agent shall have received written instructions in response to such application specifying the action to be taken or omitted;
(h) may consult with counsel satisfactory to the Warrant Agent, including its in-house counsel and counsel to the Company, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered, or omitted by it hereunder in the absence of bad faith and in accordance with the advice or opinion of such counsel;
(i) may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys or agents, and the Warrant Agent shall not be answerable or accountable for any act, omission, default, neglect or misconduct of any such attorneys or agents or for any loss to the Company, to the holders of the Warrants or any other Person resulting from any such act, omission, default, neglect or misconduct, absent gross negligence or willful misconduct in the selection and continued employment thereof (which gross negligence or bad faith must be determined by a final, non-appealable judgment of a court of competent jurisdiction);
(j) may (and any stockholder, affiliate, member, director, officer, agent, representative or employee of the Warrant Agent) may, subject to all applicable securities laws, buy, sell or deal in any of the Warrants or other securities of the Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company or otherwise act as fully and freely as though it were not the Warrant Agent under this Warrant Agreement. Nothing herein shall preclude the Warrant Agent or any such stockholder, affiliate, director, member, officer, agent, representative or employee from acting in any other capacity for the Company or for any other Person;
(k) shall have no responsibility to the Company, any holders of Warrants or any holders of Common Shares for interest or earnings on any moneys held by the Warrant Agent pursuant to this Warrant Agreement;
(l) is not authorized, and shall have no obligation, to pay any brokers, dealers, or soliciting fees to any Person; and
(m) shall not be required hereunder to comply with the laws or regulations of any country other than the United States of America or any political subdivision thereof.
7.5. In the absence of gross negligence or willful misconduct (which gross negligence or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction) on its part, the Warrant Agent shall not be liable for any action taken, suffered, or omitted by it or for any error of judgment made by it in the performance of its duties under this Warrant Agreement. Anything in this Warrant Agreement to the contrary notwithstanding, in no event shall the Warrant Agent be liable for special, indirect, incidental, consequential or punitive losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the possibility of such losses or damages and regardless of the form of action. The Warrant Agent shall have no responsibility for any liquidated damages that may be payable or paid to any Person under this Agreement for any failure by the Warrant Agent to deliver to a Holder a Definitive Certificate and/or Warrant Shares on the Company’s behalf. In addition, the Company shall indemnify and hold harmless the Warrant Agent against all claims made against the Warrant Agent for any such failure except that the Company shall not be obligated to provide any such indemnification if it is determined by a final, non-appealable judgment of a court of competent jurisdiction that such failure is due to the Warrant Agent’s gross negligence, bad faith or willful misconduct. Any liability of the Warrant Agent will be limited in the aggregate to the amount of fees (but not reimbursed costs) paid by the Company hereunder in the 12 months preceding the event for which recovery is sought. The Warrant Agent shall not be deemed liable for any failures, delays or losses, arising directly or indirectly out of conditions beyond its reasonable control including, but not limited to, acts of government, exchange or market ruling, suspension of trading, work stoppages or labor disputes, fires, civil disobedience, riots, rebellions, storms, electrical or mechanical failure, computer hardware or software failure, communications facilities failures including telephone failure, war, pandemics, epidemics, terrorism, insurrection, earthquakes, floods, acts of God or similar occurrences.
7.6. In the event any question or dispute arises with respect to have knowledge the proper interpretation of the Warrants or the Warrant Agent’s duties under this Warrant Agreement or the rights of the Company or of any event of which it was supposed to receive notice thereof hereunderHolder, and the Warrant Agent shall not be fully protected required to act and shall incur not be held liable or responsible for its refusal to act until the question or dispute has been judicially settled (and, if appropriate, in the Warrant Agent’s sole discretion, it may file a suit in interpleader or for a declaratory judgment for such purpose) by final judgment rendered by a court of competent jurisdiction, binding on all Persons interested in the matter which is no liability for failing longer subject to take action review or appeal, or settled by a written document in connection therewith unless form and until it has received such notice in writing. Promptly after the receipt substance satisfactory to Warrant Agent and executed by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party)and each such Holder. In addition, the Warrant Agent shallmay require for such purpose, if a claim but shall not be obligated to require, the execution of such written settlement by all the Holders and all other Persons that may have an interest in respect thereof is the settlement.
7.7. All funds received by Computershare under this Agreement that are to be distributed or applied by Computershare in the performance of Services (the “Funds”) shall be held by Computershare as agent for the Company and deposited in one or more bank accounts to be maintained by Computershare in its name as agent for the Company. Until paid pursuant to this Warrant Agreement, Computershare may hold or invest the Funds through such accounts in: (a) funds backed by obligations of, or guaranteed by, the United States of America; (b) debt or commercial paper obligations rated A-1 or P-1 or better by S&P Global Inc. (“S&P”) or M▇▇▇▇’▇ Investors Service, Inc. (“M▇▇▇▇’▇”), respectively; (c) Government and Treasury backed AAA-rated Fixed NAV money market funds that comply with Rule 2a-7 of the Investment Company Act of 1940, as amended; or (d) short term certificates of deposit, bank repurchase agreements, and bank accounts with commercial banks with Tier 1 capital exceeding $1 billion, or with an investment grade rating by S&P (LT Local Issuer Credit Rating), M▇▇▇▇’▇ (L▇.▇▇ Term Rating) and Fitch Ratings, Inc. (LT Issuer Default Rating) (each as reported by Bloomberg Finance L.P.). Computershare shall have no responsibility or liability for any diminution of the Funds that may result from any deposit or investment made against by Computershare in accordance with this paragraph, including any losses resulting from a default by any bank, financial institution or other third party. Computershare may from time to time receive interest, dividends or other earnings in connection with such deposits or investments. Computershare shall not be obligated to pay such interest, dividends or earnings to the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim holder or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writingother party. The Warrant Agent shall be entitled, at forward funds received for warrant exercises in a given month by the 5th business day of the following month by wire transfer to an account designated by the Company’s expense.
7.8. The Company represents and warrants that (a) it is duly incorporated and validly existing under the laws of its jurisdiction of incorporation, (b) the offer and sale of the Warrants and the execution, delivery and performance of all transactions contemplated thereby (including this Warrant Agreement) have been duly authorized by all necessary corporate action and will not result in a breach of or constitute a default under the notice of articles, articles, bylaws or any similar document of the Company or any indenture, agreement or instrument to assume which it is a party or is bound, (c) this Warrant Agreement has been duly executed and delivered by the defense Company and constitutes the legal, valid, binding and enforceable obligation of any such claim the Company, (d) the Warrants will comply in all material respects with all applicable requirements of law and (e) to the best of its knowledge, there is no litigation pending or proceedingthreatened as of the date hereof in connection with the offering of the Warrants.
7.9. The Company shall notprovide an opinion of counsel prior to the Warrant Agent setting up a reserve of Warrants and Warrant Shares to be used in connection with the exercise of the Warrants stating that (i) Warrants or such Warrant Shares were offered, without sold or issued as part of an offering that was registered in compliance with the written consent Securities Act of 1933 (the “1933 Act”), as amended, or are exempt from such registration and the shares are “covered securities” under Section 18 of the 1933 Act, and (ii) such shares will be validly issued, fully paid and non-assessable upon exercise of the Warrants in accordance with their terms.
7.10. Set forth in Annex D hereto is a list of the names and specimen signatures of the persons authorized to act for the Company under this Warrant Agreement. The Company shall, from time to time, certify to you the names and signatures of any other persons authorized to act for the Company under this Warrant Agreement.
7.11. The Warrant Agent, or any successor to it hereafter appointed, may resign its duties and be discharged from all further duties and liabilities hereunder after giving thirty (30) days’ notice in writing to the Company, or such shorter period of time agreed to by the Company. The Company may terminate the services of the Warrant Agent, effect the settlement or compromise ofany successor Warrant Agent, or consent after giving thirty (30) days’ notice in writing to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required to indemnify the Warrant Agent for any amount paid or payable by successor Warrant Agent, or such shorter period of time as agreed. In the event that the transfer agency relationship in effect between the Company and the Warrant Agent in the settlement or compromise ofterminates, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time to time, the Company may provide Warrant Agent with instructions concerning the services performed by the Warrant Agent hereunder. In addition, at any time Warrant Agent may apply to any officer of the Company for instruction, and may consult with legal counsel for Warrant Agent or Company with respect to any matter arising in connection with the services to will be performed by the Warrant Agent under this Agreement. Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held deemed to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreement.resigned
Appears in 2 contracts
Sources: Warrant Agent Agreement (BriaCell Therapeutics Corp.), Warrant Agent Agreement (BriaCell Therapeutics Corp.)
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company and the Representative, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to time, on demand the validity or value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses nonassessable.
(including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderb) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of fact contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross own negligence, bad faith, faith or willful misconduct misconduct.
(which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. c) The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company or for the Representative) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel.
(d) Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statement, order or other paper or document believed demand of the Company shall be sufficiently evidenced by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, an instrument signed by the proper Person Chairman of the Board of Directors, Chief Executive Officer, President or Persons, or otherwise upon the advice of counselChief Financial Officer (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand reasonably believed by it to have knowledge of any event of which it was supposed be genuine.
(e) The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which its reasonable expenses hereunder; the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless from and against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence, bad faith or compromise ofwillful misconduct.
(f) The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or willful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint in writing a new warrant agent. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company for instructionor by such a court, shall be a bank or trust company having a capital and may consult with legal counsel for Warrant Agent surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or Company with respect to any matter arising a stock transfer company. After acceptance in connection writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the services to be performed by the Warrant Agent under this Agreement. Warrant Agent same powers, rights, duties and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even responsibilities as if that party has it had been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the expiration same shall be done at the expense of the Company and shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate.
(g) Any corporation into which the Warrant Agent or any new warrant agent may be converted or merged, any corporation resulting from any consolidation to which the Warrant Agent or any new warrant agent shall be a party, or any corporation succeeding to the corporate trust
(h) The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the termination Company and otherwise deal with the Company in the same manner and to the same extent and with like effect as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(i) The Warrant Agent shall retain for a period of this Agreementtwo years from the date of exercise any Warrant Certificate received by it upon such exercise.
Appears in 2 contracts
Sources: Warrant Agreement (2connect Express Inc), Warrant Agreement (2connect Express Inc)
Concerning the Warrant Agent. The Company agrees that to pay to the Warrant Agent is entitled, from time to time, to reasonable compensation for its all services as agreed in accordance with a mutually agreed upon fee schedule dated on or around the date hereof. The Warrant Agent shall also be entitled to receive rendered by it hereunder and, from time to time, on demand of the Warrant Agent, its reasonable expenses and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against any losscosts, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense expenses (including the reasonable fees and expenses of its legal counsel), losses or damages, which may be paid, incurred or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from any action taken, suffered or omitted by the its actions as Warrant Agent in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreementpursuant hereto; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s its gross negligence, bad faith, or willful misconduct (misconduct. Promptly after the receipt by the Warrant Agent of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, notify the Company thereof in writing. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding, and, if it so elects at any time after receipt of such notice, it may assume the defense of any suit brought to enforce any such claim or of any other legal action or proceeding. For the purposes of this Section 17, the term “expenses and losses” mean any amount paid or payable to satisfy any claim, demand, action, suit or proceeding settled with the express written consent of the Warrant Agent, and all reasonable costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claim, demand, action, suit, proceeding or investigation. The Warrant Agent shall be responsible for and shall indemnify and hold the Company harmless from and against any and all losses, damages, costs, charges, counsel fees, payments, expenses and liability arising out of or attributable to the Warrant Agent’s refusal or failure to comply with the terms of this Agreement, or which gross negligence, bad faith, arise out of Warrant Agent’s negligence or willful misconduct must be determined by a finalor which arise out of the breach of any representation or warranty of the Warrant Agent hereunder, non-appealable judgment of a court of competent jurisdiction)for which the Warrant Agent is not entitled to indemnification under this Agreement; further provided, thathowever, the that Warrant Agent’s aggregate liability during any term of this Agreement with respect to, arising from, or arising in connection with this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, contract or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges charges, but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. The Warrant Agent shall be authorized and protected and shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in connection with its acceptance and administration of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement, or other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counsel. The Warrant Agent shall not be deemed to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and the Warrant Agent shall be fully protected and shall incur no liability for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, entitled to participate at the Company’s expense, to assume its own expense in the defense of any such claim or proceeding. The Company shall not, without and, if it so elects at any time after receipt of such notice, it may assume the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry defense of any judgment with respect to, suit brought to enforce any pending such claim or threatened of any other legal action or claim in respect proceeding. For the purposes of which indemnification may be sought hereunder (whether or not this Section 17, the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim term “expenses and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required to indemnify the Warrant Agent for losses” mean any amount paid or payable by to satisfy any claim, demand, action, suit or proceeding settled with the Warrant Agent in the settlement or compromise of, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the express written consent of the Company, which consent shall and all reasonable costs and expenses, including, but not be unreasonably withheldlimited to, conditioned reasonable counsel fees and disbursements, paid or delayedincurred in investigating or defending against any such claim, demand, action, suit, proceeding or investigation. From time to time, the Company may provide Warrant Agent with instructions concerning the services performed by the Warrant Agent hereunder. In addition, at any time Warrant Agent may apply to any officer of the Company for instruction, and may consult with legal counsel for Warrant Agent or Company with respect to any matter arising in connection with the services to be performed by the Warrant Agent under this Agreement. Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreement.
Appears in 2 contracts
Sources: Warrant Agreement (Citizens Bancorp), Warrant Agreement (Citizens Bancorp)
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company and National, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to time, on demand the validity or value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses nonassessable.
(including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderb) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Exercise Price or the Redemption Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of fact contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross own negligence, bad faith, faith or willful misconduct misconduct.
(which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. c) The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company or for National) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel.
(d) Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statement, order or other paper or document believed demand of the Company shall be sufficiently evidenced by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, an instrument signed by the proper Person Chairman of the Board of Directors, Chief Executive Officer, Chief Financial Officer, President or Persons, or otherwise upon the advice of counselany Vice President (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand reasonably believed by it to have knowledge of any event of which it was supposed be genuine.
(e) The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which its reasonable expenses hereunder; the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless from and against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder EXCEPT losses, expenses and liabilities arising as a result of the Warrant Agent's negligence, bad faith or compromise ofwillful conduct.
(f) The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities resulting as a result of the Warrant Agent's own gross negligence or willful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint in writing a new warrant agent. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate.
(g) Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged, any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party, or any corporation succeeding to the services corporate trust business of the Warrant Agent or any new warrant agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holders of each Warrant Certificate.
(h) The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effect as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company or for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. other legal entity.
(i) The Warrant Agent shall not be held to have notice retain for a period of two years from the date of exercise any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of Warrant Certificate received by it upon such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementexercise.
Appears in 2 contracts
Sources: Warrant Agreement (Casull Arms Corp), Warrant Agreement (Casull Arms Corp)
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company and the underwriters, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to time, on demand the validity or value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented outnon-of-pocket expenses assessable.
(including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderb) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Applicable Purchase Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustment, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of fact contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s own gross negligence, bad faith, negligence or willful misconduct misconduct.
(which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. c) The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel.
(d) Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statement, order or other paper or document believed demand of the Company shall be sufficiently evidenced by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, an instrument signed by the proper Person President or Persons, or otherwise upon the advice of counselany Vice President (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction order or demand.
(e) The Company agrees to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which its reasonable expenses hereunder; the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and reasonable counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement or compromise ofexecution of its duties and powers hereunder except losses, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent expenses and liabilities arising as a result of the Company, which consent shall not be unreasonably withheld, conditioned Warrant Agent's gross negligence or delayed. From time to time, the Company may provide willful misconduct.
(f) The Warrant Agent with instructions concerning may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the services performed by Warrant Agent's own gross negligence or willful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent hereundershall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. In additionUpon such resignation the Company shall appoint in writing a new warrant agent. If the Company shall fail to make such appointment within a period of 30 days after it has been notified in writing of such resignation by the resigning Warrant Agent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company doing business in New York City. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it has been originally named herein as the warrant agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyable, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate.
(g) Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged, any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with the services new warrant agent shall be a party shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holders of each Warrant Certificate.
(h) The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effect as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company or for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. other legal entity.
(i) The Warrant Agent shall not be held to have notice retain for a period of two years from the date of exercise any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of Warrant Certificate received by it upon such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementexercise.
Appears in 2 contracts
Sources: Warrant Agency Agreement (Bw Acquisition Corp), Warrant Agency Agreement (North Atlantic Acquisition Corp)
Concerning the Warrant Agent. 15.01 The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive from time make any representations as to timethe validity, on demand value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agent. nonassessable.
15.02 The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not be paid, incurred (i) liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, own negligence or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. misconduct.
15.03 The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel.
15.04 Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, certificatePresident, any Vice President, its Secretary, or Assistant Secretary (unless other evidence in respect thereof is herein specifically prescribed). The warrant agent shall not be liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or other paper or document demand believed by it to be genuine and genuine.
15.05 The Company agrees to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counsel. The Warrant Agent shall not be deemed to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent its reasonable expenses hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required It further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwillful misconduct.
15.06 The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or willful misconduct), after giving thirty (30) days prior written notice to the Company. At least fifteen (15) days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to each Registered Holder at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of fifteen (15) days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then any time Warrant Agent Registered Holder may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000, or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to each Registered Holder.
15.07 Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreement. Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreement.15.06
Appears in 2 contracts
Sources: Warrant Agreement (Bentley Pharmaceuticals Inc), Warrant Agreement (Bentley Pharmaceuticals Inc)
Concerning the Warrant Agent. The Company agrees that to pay to the Warrant Agent is entitled, from time to time, to reasonable compensation for its all services as agreed in accordance with a mutually agreed upon fee schedule dated on or around the date hereof. The Warrant Agent shall also be entitled to receive rendered by it hereunder and, from time to time, on demand of the Warrant Agent, its reasonable expenses and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against any losscosts, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense expenses (including the reasonable fees and expenses of its legal counsel), losses or damages, which may be paid, incurred or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from any action taken, suffered or omitted by the its actions as Warrant Agent in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreementpursuant hereto; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s its gross negligence, bad faith, or willful misconduct (misconduct. Promptly after the receipt by the Warrant Agent of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, notify the Company thereof in writing. The Company shall be entitled to participate as its own expense in the defense of any such claim or proceeding, and, if it so elects at any time after receipt of such notice, it may assume the defense of any suit brought to enforce any such claim or of any other legal action or proceeding. For the purposes of this Section 17, the term “expense or loss” means any amount paid or payable to satisfy any claim, demand, action, suit or proceeding settled with the express written consent of the Warrant Agent, and all reasonable costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claim, demand, action, suit, proceeding or investigation. The Warrant Agent shall be responsible for and shall indemnify and hold the Company harmless from and against any and all losses, damages, costs, charges, counsel fees, payments, expenses and liability arising out of or attributable to the Warrant Agent’s refusal or failure to comply with the terms of this Agreement, or which gross negligence, bad faith, arise out of Warrant Agent’s negligence or willful misconduct must be determined by a finalor which arise out of the breach of any representation or warranty of the Warrant Agent hereunder, non-appealable judgment of a court of competent jurisdiction)for which the Warrant Agent is not entitled to indemnification under this Agreement; further provided, thathowever, the that Warrant Agent’s aggregate liability during any term of this Agreement with respect to, arising from, or arising in connection with this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges charges, but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. The Warrant Agent shall be authorized and protected and shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in connection with its acceptance and administration of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement, or other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counsel. The Warrant Agent shall not be deemed to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and the Warrant Agent shall be fully protected and shall incur no liability for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, entitled to participate at the Company’s expense, to assume its own expense in the defense of any such claim or proceeding. The Company shall not, without and, if it so elects at any time after receipt of such notice, it may assume the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry defense of any judgment with respect to, suit brought to enforce any pending such claim or threatened of any other legal action or claim in respect proceeding. For the purposes of which indemnification may be sought hereunder (whether this Section 18, the term “expense or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required to indemnify the Warrant Agent for loss” means any amount paid or payable by to satisfy any claim, demand, action, suit or proceeding settled with the Warrant Agent in the settlement or compromise of, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the express written consent of the Company, which consent shall and all reasonable costs and expenses, including, but not be unreasonably withheldlimited to, conditioned reasonable counsel fees and disbursements, paid or delayed. From time to timeincurred in investigating or defending against any such claim, the Company may provide Warrant Agent with instructions concerning the services performed by the Warrant Agent hereunder. In additiondemand, at any time Warrant Agent may apply to any officer of the Company for instructionaction, and may consult with legal counsel for Warrant Agent suit, proceeding or Company with respect to any matter arising in connection with the services to be performed by the Warrant Agent under this Agreement. Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementinvestigation.
Appears in 2 contracts
Sources: Warrant Agreement (Cardium Therapeutics, Inc.), Warrant Agreement (Cardium Therapeutics, Inc.)
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to time, on demand the validity or value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses nonassessable.
(including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution b) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by Warrant Certificates to make or cause to be made any adjustment to the Warrant Agent. The Company also covenants and agrees provided in this Agreement, or to indemnify and to hold the Warrant Agent harmless against determine whether any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), fact exists which may require any such adjustment, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same, it shall not (i) be paid, incurred liable for any recital or suffered by statement of fact contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s own gross negligence, bad faith, negligence or willful misconduct misconduct.
(which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. c) The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel.
(d) Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statement, order or other paper or document believed demand of the Company shall be sufficiently evidenced by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, an instrument signed by the proper Person Chairperson of the Board of Directors, Vice-Chairperson or Persons, or otherwise upon the advice of counselSecretary (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand.
(e) The Company agrees to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which its reasonable expenses hereunder; the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent’s gross negligence or compromise ofwillful misconduct.
(f) The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent’s own negligence or willful misconduct), or entry into any judgment with respect toafter giving 60 days prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, any pending or threatened action or claim the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company’s expense. Upon such resignation the Company shall appoint in respect writing a new warrant agent. After acceptance in writing of which indemnification or contribution may be sought hereunder without such appointment by the written consent of new warrant agent is received by the Company, which consent such new warrant agent shall not be unreasonably withheldvested with the same powers, conditioned rights, duties and responsibilities as if it had been originally named herein as the warrant agent, without any further assurance, conveyance, act or delayed. From time deed; but if for any reason it shall be necessary or expedient to timeexecute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company may provide and shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with the resigning Warrant Agent with instructions concerning and shall forthwith cause a copy of such notice to be mailed to the services performed by Registered Holder of each Warrant Certificate.
(g) Any corporation into which the Warrant Agent hereunder. In additionor any new warrant agent may be converted or merged, at any time Warrant Agent may apply corporation resulting from any consolidation to any officer of which the Company for instruction, and may consult with legal counsel for Warrant Agent or Company with respect any new warrant agent shall be a party, or any corporation succeeding to the corporate trust business of the Warrant Agent or any matter arising in connection with the services new warrant agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under the provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holders of each Warrant Certificate, at the Warrant Agent’s expense.
(h) Except as otherwise provided in this Agreement. Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by Company for , if any action taken act or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in event which is required under this Agreement to otherwise occur on a Saturday, Sunday or any other day the contraryWarrant Agent is not open for business, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any then such act or failure to act hereunder even if event shall occur on the next successive day that party has been advised of is not a Saturday, Sunday or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of day in which the Warrant Agent, the expiration of the Warrants or the termination of this AgreementAgent is not open for business.
Appears in 2 contracts
Sources: Warrant Agreement (Action Products International Inc), Warrant Agreement (Action Products International Inc)
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to time, on demand the validity or value or authorization of the Warrant Agent, its reasonable and documented out-of-pocket expenses (including reasonable and documented counsel fees and Certificates or the Warrants represented thereby or of any securities or other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution property delivered upon exercise of this Agreement and the any Warrant or whether any stock issued upon exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agent. is fully paid and nonassessable.
(b) The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustment, or with respect to the nature or extent of any such adjustment when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of fact contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed to be in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross own negligence, willful misconduct or bad faith, or willful misconduct .
(which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. c) The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel.
(d) Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statement, order or other paper or document believed demand of the Company shall be sufficient if evidenced by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, an instrument signed by the proper Person Chairman of the Board of Directors, President or Persons, or otherwise upon the advice of counselany Vice President (unless other evidence in respect thereof is more specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand.
(e) The Company agrees to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which its reasonable expenses hereunder; the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and reasonable counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement or compromise ofexecution of its duties and powers hereunder except losses, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent expenses and liabilities arising as a result of the CompanyWarrant Agent's negligence, which consent shall not be unreasonably withheld, conditioned willful misconduct or delayed. From time to time, the Company may provide bad faith.
(f) The Warrant Agent with instructions concerning may resign its duties and be discharged from all other duties and liabilities hereunder (except liabilities arising as a result of the services performed by Warrant Agent's own negligence, willful misconduct or bad faith), after giving 60 days' prior written notice to the Company. At least 30 days prior to the date such resignation is to become effective, the Warrant Agent hereundershall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. In additionWithin a reasonable period of time following such resignation the Company shall appoint in writing a new Warrant Agent. If the Company shall fail to make such appointment within a period of 30 days after having been notified in writing of such resignation by the resigning Warrant Agent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction in the State of California for the appointment of a new Warrant Agent. Any new Warrant Agent, either appointed by the Company or by such a court, shall be a bank or trust company having capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company doing business in New York, New York or the State of California. After acceptance in writing of such appointment by the new Warrant Agent is received by the Company, such New Warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate.
(g) Any corporation into which the Warrant Agent or Company with respect any new Warrant Agent may be converted or merged, any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new Warrant Agent shall be a party, or any corporation succeeding to the services corporate trust business of the Warrant Agent or any new Warrant Agent shall be a successor Warrant Agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of Any such counsel. successor Warrant Agent shall not be held to have promptly cause notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement its succession as Warrant Agent to be mailed to the contrary, neither party to this Agreement shall be liable Company and to the Registered Holders of each Warrant Certificate.
(h) The Warrant Agent, its Subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other party securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effect as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement the Company or for any consequential, indirect, punitive, special or incidental damages arising out other legal entity.
(i) The Warrant Agent shall retain for a period of two years from the date of exercise any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of Warrant Certificate received by it upon such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementexercise.
Appears in 2 contracts
Sources: Warrant Agreement (NTN Communications Inc), Warrant Agreement (NTN Communications Inc)
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company and the Representative, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to time, on demand the validity or value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses nonassessable.
(including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderb) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustment, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of fact contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing except for its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s own gross negligence, bad faith, negligence or willful misconduct misconduct.
(which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. c) The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel.
(d) Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statement, order or other paper or document believed demand of the Company shall be sufficiently evidenced by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, an instrument signed by the proper Person Chairman of the Board of Directors, Chief Executive Officer or Persons, or otherwise upon the advice of counselPresident (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand.
(e) The Company agrees to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which its reasonable expenses hereunder; the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement or compromise ofexecution of its duties and powers hereunder except losses, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent expenses and liabilities arising as a result of the Company, which consent shall not be unreasonably withheld, conditioned Warrant Agent's gross negligence or delayed. From time to time, the Company may provide willful misconduct.
(f) The Warrant Agent with instructions concerning may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the services performed by Warrant Agent's own gross negligence or willful misconduct), after giving 60 days prior written notice to the Company. At least 30 days prior to the date such resignation is to become effective, the Warrant Agent hereundershall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. In additionUpon such resignation the Company shall appoint in writing a new warrant agent. If the Company shall fail to make such appointment within a period of 60 days after it has been notified in writing of such resignation by the resigning Warrant Agent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company doing business in New York, New York. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the warrant agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate.
(g) Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged, any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party, or any corporation succeeding to the services corporate trust business of the Warrant Agent or any new warrant agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holders of each Warrant Certificate.
(h) The Warrant Agent, its Subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effect as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company or for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. other legal entity.
(i) The Warrant Agent shall not be held retain for a period of three years from the date of exercise any Warrant Certificate received by it upon such exercise, marked to have notice of any change of authority of any person, until receipt of written notice indicate its cancellation thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This accordance with Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreement6(e) hereof.
Appears in 2 contracts
Sources: Warrant Agreement (Havana Group Inc), Warrant Agreement (Tellurian Inc /Nj/)
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date hereofprovisions of this Agreement. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to timethe validity, on demand value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agentnonassessable. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Exercise Price or the Redemption Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. The Warrant Agent shall not (i) be paid, incurred liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, own negligence or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being soughtmisconduct. The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion of this Agreement and the exercise and performance advice of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel. Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, certificatePresident, statementany Vice President, its Secretary, or Assistant Secretary (unless other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselevidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine. The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwillful misconduct. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or willful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court shall be a bank or trust company having a capital and surplus as shown by its last published report to its stockholders, of not less than Ten Million (U.S. $10,000,000.00) Dollars, or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Holder of each Warrant Certificate. Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Holders of the Warrant Certificates. The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 2 contracts
Sources: Warrant Agreement (Aviation Group Inc), Warrant Agreement (Aviation Group Inc)
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive make any representations as to the validity, value or authorization of the Warrant Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and nonassessable. The Warrant Agent shall account promptly to the Company with respect to Warrants exercised and concurrently pay the Company, as provided in Section 4, all moneys received by the Warrant Agent upon the exercise of such Warrants. The Warrant Agent shall, upon request of the Company from time to time, on demand deliver to the Company such complete reports of registered ownership of the Warrants and such complete records of transactions with respect to the Warrants and the shares of Common Stock as the Company may request. The Warrant AgentAgent shall also make available to the Company and R Tucker f▇▇ ▇▇▇pection by their agents or employees, its reasonable from time to time as either of them may request, such original books of accounts and documented out-of-pocket expenses records (including reasonable and documented counsel fees and other disbursements incurred in original Warrant Certificates surrendered to the preparation, delivery, negotiation, amendment, administration and execution Warrant Agent upon exercise of this Agreement and Warrants) as may be maintained by the exercise and performance of its duties hereunder) Warrant Agent in connection with the services rendered hereunder by issuance and exercise of Warrants hereunder, such inspections to occur at the Warrant Agent's office as specified in Section 8, during normal business hours. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (I) be paid, incurred liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, own negligence or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being soughtmisconduct. The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the written opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel. Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, certificatePresident, statementany Vice President, its Secretary, or Assistant Secretary, (unless other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselevidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine. The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwillful misconduct. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or willful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect toinability of the Warrant Agent to act as such hereunder, the Company shall appoint a new warrant agent in writing. If the Company fails to make an appointment within a period of 15 days after it has been notified in writing of the resignation, the Registered Holder of any pending or threatened action or claim in respect Warrant Certificate may apply to a court of which indemnification or contribution may be sought hereunder without competent jurisdiction to appoint a new warrant agent. When the new warrant agent's written consent of acceptance is received by the Company, which consent the new warrant agent will be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall not be unreasonably withheldnecessary or expedient to execute and deliver any further assurance, conditioned conveyance, act or delayed. From time to timedeed, the same shall be done at the expense of the Company may provide and shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with the resigning Warrant Agent with instructions concerning and shall forthwith cause a copy of such notice to be mailed to the services performed by Registered Holder of each Warrant Certificate. Any corporation into which the Warrant Agent hereunder. In addition, at or any time Warrant Agent new warrant agent may apply be converted or merged or any corporation resulting from any consolidation to any officer of which the Company for instruction, and may consult with legal counsel for Warrant Agent or Company with respect any new warrant agent shall be a party shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to any matter arising in connection with the services to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate. The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 2 contracts
Sources: Warrant Agreement (Tensleep Financial Corp), Warrant Agreement (Tensleep Financial Corp)
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date hereofprovisions of this Agreement. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to timethe validity, on demand value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agentnonassessable. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. The Warrant Agent shall not (i) be paid, incurred liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, own negligence or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being soughtmisconduct. The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company or for the Underwriter) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel. Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, certificatePresident, statementany Vice President, its Secretary, or Assistant Secretary (unless other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselevidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine. The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement or compromise ofexecution of its duties and powers hereunder except losses, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent expenses and liabilities arising as a result of the Company, which consent shall not be unreasonably withheld, conditioned Warrant Agent's negligence or delayedwillful misconduct. From time to time, In the event of a dispute under this Agreement between the Company may provide Warrant Agent with instructions concerning and the services performed Underwriter regarding proceeds received by the Warrant Agent hereunder. In additionfrom the exercise of the Warrants, at any time the Warrant Agent shall have the right, but not the obligation, to bring an interpleader action to resolve such dispute. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or willful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or any inability of the Warrant Agent to act as such hereunder, the Company shall appoint a new warrant agent in writing. If the Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent, then the Registered Holder of any Warrant Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court shall be a bank or trust company having a capital and surplus as shown by its last published report to its stockholders, of not less than Ten Million Dollars ($10,000,000.00), or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate. Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate. The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 2 contracts
Sources: Warrant Agreement (Connecticut Valley Sports Inc), Warrant Agreement (Epi Technologies Inc/De)
Concerning the Warrant Agent. (a) The Company agrees that to pay to the Warrant Agent is entitled, from time to time, to reasonable compensation for its all services as agreed in accordance with a mutually agreed upon fee schedule dated on or around the date hereof. The Warrant Agent shall also be entitled to receive rendered by it hereunder and, from time to time, on demand of the Warrant Agent, its reasonable expenses and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderadministration.
(b) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against any losscosts, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense expenses (including the reasonable fees and expenses of its legal counsel), losses or damages, which may be paid, incurred or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from any action taken, suffered or omitted by the its actions as Warrant Agent in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreementpursuant hereto; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s its gross negligence, bad faith, or willful misconduct misconduct.
(c) Promptly after the receipt by the Warrant Agent of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, notify the Company thereof in writing. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding, and, if it so elects at any time after receipt of such notice, it may assume the defense of any suit brought to enforce any such claim or of any other legal action or proceeding.
(d) The Warrant Agent shall be responsible for and shall indemnify and hold the Company harmless from and against any and all losses, damages, costs, charges, counsel fees, payments, expenses and liability arising out of or attributable to the Warrant Agent’s refusal or failure to comply with the terms of this Agreement, or which arise out of Warrant Agent’s gross negligence, bad faith, faith or willful misconduct must be determined by a finalor which arise out of the breach of any representation or warranty of the Warrant Agent hereunder, non-appealable judgment of a court of competent jurisdiction)for which the Warrant Agent is not entitled to indemnification under this Agreement; further provided, thathowever, the that Warrant Agent’s aggregate liability during any term of this Agreement with respect to, arising from, or arising in connection with this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges charges, but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. The Warrant Agent shall be authorized and protected and shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in connection with its acceptance and administration of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement, or other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counsel. The Warrant Agent shall not be deemed to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and the Warrant Agent shall be fully protected and shall incur no liability for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation .
(of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. e) Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, entitled to participate at the Company’s expense, to assume its own expense in the defense of any such claim or proceeding. The Company shall not, without and, if it so elects at any time after receipt of such notice, it may assume the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry defense of any judgment with respect to, suit brought to enforce any pending such claim or threatened of any other legal action or claim in respect proceeding. For the purposes of which indemnification may be sought hereunder (whether this Section 15, the term “expense or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required to indemnify the Warrant Agent for loss” means any amount paid or payable by to satisfy any claim, demand, action, suit or proceeding settled with the Warrant Agent in the settlement or compromise of, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the express written consent of the Company, which consent shall and all reasonable costs and expenses, including, but not be unreasonably withheldlimited to, conditioned reasonable counsel fees and disbursements, paid or delayed. From time to timeincurred in investigating or defending against any such claim, the Company may provide Warrant Agent with instructions concerning the services performed by the Warrant Agent hereunder. In additiondemand, at any time Warrant Agent may apply to any officer of the Company for instructionaction, and may consult with legal counsel for Warrant Agent suit, proceeding or Company with respect to any matter arising in connection with the services to be performed by the Warrant Agent under this Agreement. Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither investigation.
(f) Neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive special or incidental damages under any provisions provision of this Agreement or for any consequential, indirect, punitivepenal, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreement.
Appears in 2 contracts
Sources: Warrant Agreement (Converted Organics Inc.), Warrant Agreement (Converted Organics Inc.)
Concerning the Warrant Agent. (a) The Company agrees that to pay to the Warrant Agent is entitled, from time to time, to reasonable compensation for its all services as agreed in accordance with a mutually agreed upon fee schedule dated on or around the date hereof. The Warrant Agent shall also be entitled to receive rendered by it hereunder and, from time to time, on demand of the Warrant Agent, its reasonable expenses and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder.
(b) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against any losscosts, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense expenses (including the reasonable fees and expenses of its legal counsel), losses or damages, which may be paid, incurred or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from any action taken, suffered or omitted by the its actions as Warrant Agent in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreementpursuant hereto; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, its breach of this Agreement or the Warrant Agent’s gross negligence, bad faith, or willful misconduct misconduct.
(which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. The Warrant Agent shall be authorized and protected and shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in connection with its acceptance and administration of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement, or other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counsel. The Warrant Agent shall not be deemed to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and the Warrant Agent shall be fully protected and shall incur no liability for failing to take action in connection therewith unless and until it has received such notice in writing. c) Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party)investigation, the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding, and, if it so elects at any time after receipt of such notice, it may assume the defense of any suit brought to enforce any such claim or of any other legal action or proceeding. For the purposes of this Section 13, the terms “expense” or “loss” mean any amount paid or payable to satisfy any claim, demand, action, suit or proceeding, and all reasonable costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claim, demand, action, suit, proceeding or investigation.
(d) The Warrant Agent shall be responsible for any and all losses, damages, costs, charges, counsel fees, payments, expenses and liability (collectively, “Losses”), and shall indemnify and hold the Company harmless from and against such Losses, arising out of or attributable to the Warrant Agent’s breach of Section 7(b) of this Agreement.
(e) Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, entitled to participate at the Company’s expense, to assume its own expense in the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agentand, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required to indemnify the Warrant Agent for any amount paid or payable by the Warrant Agent in the settlement or compromise of, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time to time, the Company may provide Warrant Agent with instructions concerning the services performed by the Warrant Agent hereunder. In addition, if it so elects at any time Warrant Agent may apply to any officer of the Company for instruction, and may consult with legal counsel for Warrant Agent or Company with respect to any matter arising in connection with the services to be performed by the Warrant Agent under this Agreement. Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion after receipt of such counsel. Warrant Agent shall not be held to have notice notice, it may assume the defense of any change of authority suit brought to enforce any such claim or of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive legal action or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementproceeding.
Appears in 2 contracts
Sources: Warrant Agent Agreement (NeuroMetrix, Inc.), Warrant Agent Agreement (AMEDICA Corp)
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts ---------------------------- hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive from time make any representations as to timethe validity, on demand value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agentnonassessable. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, except for its own negligence or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being soughtwilful misconduct. The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel. Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, certificatePresident, statementany Vice President, its Secretary, or Assistant Secretary, (unless other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselevidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine. The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwilful misconduct. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or wilful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company that is a registered transfer agent under the Securities Exchange Act of 1934. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate. Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate. The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 2 contracts
Sources: Warrant Agreement (Notify Corp), Warrant Agreement (Notify Corp)
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to timethe validity, on demand value, or authorization of the Warrant AgentCertificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and nonassessable. The Warrant Agent shall not at any time be under any duty or responsibility to any Holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, or to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be liable for any recital or statement of facts contained herein or for any action taken, suffered, or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its reasonable covenants and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred obligations contained in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderor in any Warrant Certificate, or (iii) be liable for any act or omission in connection with the services rendered hereunder by the Warrant Agentthis Agreement except for its own negligence or wilful misconduct. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against may at any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense time consult with counsel satisfactory to it (including the reasonable fees and expenses of legal counsel), which who may be paid, incurred counsel for the Company) and shall incur no liability or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from responsibility for any action taken, suffered or omitted by the Warrant Agent it in connection good faith in accordance with the executionopinion or advice of such counsel. Any notice, acceptancestatement, administrationinstruction, exercise and performance of its duties under this Agreementrequest, including the reasonable costs and expenses of defending against any claim of liability arising therefromdirection, directly or indirectlyorder, or demand of enforcing the Company shall be sufficiently evidenced by an instrument signed by the President, any Vice President, its rights under this Agreement; providedSecretary, that such covenant and agreement does not extend toor Assistant Secretary, and the (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event liable for which recovery from Warrant Agent is being sought. The Warrant Agent shall be authorized and protected and shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in connection accordance with its acceptance and administration of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statementorder, or other paper or document demand reasonably believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselgenuine. The Warrant Agent shall not be deemed Company agrees to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses, and liabilities, including judgments, costs, and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses, and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwilful misconduct. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or wilful misconduct), after giving thirty (30) days prior written notice to the Company. The Warrant Agent may be removed by like notice from the Company to the Warrant Agent. At least fifteen (15) days prior to the date such resignation or removal is to become effective, the Warrant Agent or the Company shall cause a copy of such notice of resignation or removal to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation or removal, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of fifteen (15) days after such removal or after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction in the State of New York for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $50,000,000 or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties, and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act, or deed and the former Warrant Agent shall deliver and transfer to the successor warrant agent any property at the time held by it hereunder; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act, or deed, the same shall be done at the expense of the Company for instructionand shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment, the Company shall file notice thereof with the resigning or removed Warrant Agent and may consult with legal counsel for shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate. Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under the provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate. If at the time such successor to the Warrant Agent shall succeed to the agency created by this Agreement, any of the Warrants shall have been countersigned but not delivered, any such successor to the Warrant Agent may adopt the countersignature of the original Warrant Agent and deliver such Warrant so countersigned; and if at the time any of the Warrants shall not have been countersigned, any successor to the Warrant Agent may countersign such Warrants in the name of the predecessor Warrant Agent or in the name of the successor Warrant Agent; and, in all such cases, the Warrants shall have the full force provided in the Warrants and in this Agreement. Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by Company for In any action taken or omitted by Warrant Agent in reliance upon case at any Company instructions or upon time the advice or opinion name of such counsel. the Warrant Agent shall be changed and at such time any of the Warrants shall have been countersigned but not be held to delivered, the Warrant Agent may adopt the countersignatures under its prior name and deliver such Warrants so countersigned; and, in case at the time any of the Warrants shall have notice of any change of authority of any personnot been countersigned, until receipt of written notice thereof from Company. Notwithstanding anything the Warrant Agent may countersign such Warrants either in its prior name or in its changed name; and, in all such cases, such Warrants shall have the full force provided in the Warrants and in this Agreement Agreement. The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the contrary, neither party to this Agreement same extent and with like effects as though it were not the Warrant Agent. Nothing herein shall be liable to preclude the Warrant Agent from acting in any other party capacity for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement the Company if so authorized by the Company or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 2 contracts
Sources: Warrant Agreement (Sun Hill Industries Inc), Warrant Agreement (Pc411 Inc)
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to time, on demand the validity or value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses nonassessable.
(including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderb) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of fact contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross own negligence, bad faith, faith or willful misconduct misconduct.
(which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. c) The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company or for WAS) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel.
(d) Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statement, order or other paper or document believed demand of the Company shall be sufficiently evidenced by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, an instrument signed by the proper Person Chairman of the Board of Directors, Chief Executive Officer, President or Persons, or otherwise upon the advice of counselany Vice President (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand reasonably believed by it to have knowledge of any event of which it was supposed be genuine.
(e) The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which its reasonable expenses hereunder; the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless from and against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder EXCEPT losses, expenses and liabilities arising as a result of the Warrant Agent's negligence, bad faith or compromise ofwillful misconduct.
(f) The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own gross negligence or willful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint in writing a new warrant agent. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate.
(g) Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged, any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party, or any corporation succeeding to the services corporate trust business of the Warrant Agent or any new warrant agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holders of each Warrant Certificate.
(h) The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effect as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company or for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. other legal entity.
(i) The Warrant Agent shall not be held to have notice retain for a period of two years from the date of exercise any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of Warrant Certificate received by it upon such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementexercise.
Appears in 2 contracts
Sources: Warrant Agreement (Lasik America Inc), Warrant Agreement (Lasik America Inc)
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive from time make any representations as to timethe validity, on demand value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agentnonassessable. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, own negligence or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being soughtmisconduct. The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel. Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the President, certificateany Vice President, statementits Secretary, or Assistant Secretary, (unless other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselevidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine. The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwillful misconduct. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or wilful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning warrant Agent, then the Registered Holder of any Warrant Agent hereunder. In addition, at any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court shall be a bank or trust company having a capital and surplus as shown by its last published report to its stockholders, of not less than $10,000,000, or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate. Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate. The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 2 contracts
Sources: Warrant Agreement (Oxboro Medical International Inc), Warrant Agreement (Ciattis Inc /De/)
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company and the Representative, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to time, on demand the validity or value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented outnon-of-pocket expenses assessable.
(including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderb) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustment, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of fact contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s own gross negligence, bad faith, negligence or willful misconduct misconduct.
(which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. c) The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company or the Representative) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel.
(d) Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statement, order or other paper or document believed demand of the Company shall be sufficiently evidenced by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, an instrument signed by the proper Person Chairman of the Board of Directors, President or Persons, or otherwise upon the advice of counselany Vice President (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand.
(e) The Company agrees to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which its reasonable expenses hereunder; the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and hold it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement or compromise ofexecution of its duties and powers hereunder except losses, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent expenses and liabilities arising as a result of the Company, which consent shall not be unreasonably withheld, conditioned Warrant Agent's gross negligence or delayed. From time to time, the Company may provide willful misconduct.
(f) The Warrant Agent with instructions concerning may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the services performed by Warrant Agent's own gross negligence or willful misconduct), after giving thirty (30) days' prior written notice to the Company. At least fifteen (15) days prior to the date such resignation is to become effective, the Warrant Agent hereundershall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. In additionUpon such resignation the Company shall appoint in writing a new warrant agent. If the Company shall fail to make such appointment within a period of thirty (30) days after it has been notified in writing of such resignation by the resigning Warrant Agent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than ten million dollars ($10,000,000) or a stock transfer company doing business in New York, New York. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the warrant agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instructionand shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment, the Company shall file notice thereof with the resigning Warrant Agent and may consult with legal counsel for shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate.
(g) Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged, any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party, or any corporation succeeding to the services corporate trust business of the Warrant Agent or any new warrant agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holders of each Warrant Certificate.
(h) The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effect as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company or for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. other legal entity.
(i) The Warrant Agent shall not be held to have notice retain for a period of two (2) years from the date of exercise any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of Warrant Certificate received by it upon such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementexercise.
Appears in 2 contracts
Sources: Warrant Agreement (Elcotel Inc), Warrant Agreement (Brighton Technologies Corp)
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to timethe validly, on demand value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any Common Stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agentnonassessable. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any Registered Holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any facts exist which may require any such adjustment, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, own negligence or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being soughtmisconduct. The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel. Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statement, order or other paper or document believed demand of the Company shall be sufficiently evidenced by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, an instrument signed by the proper Person Chairman of the Board, President, any Vice President, its Secretary or Persons, or otherwise upon the advice of counselAssistant Secretary (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine. The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwillful misconduct. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or willful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be (a) a bank or trust company having a capital and surplus, as shown by its last published report to its shareholders, of not less than $10,000,000 or (b) a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate. Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Warrant Agent and its agents and subcontractors Any such successor warrant agent shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have promptly cause notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement its succession as warrant agent to be mailed to the contrary, neither party to this Agreement shall be liable Company and to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions Registered Holder of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the each Warrant Agent, the expiration of the Warrants or the termination of this AgreementCertificate.
Appears in 2 contracts
Sources: Warrant Agreement (Surrey Inc), Warrant Agreement (Surrey Inc)
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive from time make any representations as to timethe validity, on demand value, or authorization of the Warrant AgentCertificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and nonassessable. The Warrant Agent shall not at any time be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, or to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be liable for any recital or statement of facts contained herein or for any action taken, suffered, or omitted by it in reliance on any warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its reasonable covenants and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred obligations contained in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderor in any Warrant Certificate, or (iii) be liable for any act or omission in connection with the services rendered hereunder by the Warrant Agentthis Agreement except for its own negligence or willful misconduct. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against may at any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense time consult with counsel satisfactory to it (including the reasonable fees and expenses of legal counsel), which who may be paid, incurred counsel for the Company) and shall incur no liability or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from responsibility for any action taken, suffered or omitted by the Warrant Agent it in connection good faith in accordance with the executionopinion or advice of such counsel. Any notice, acceptancestatement, administrationinstruction, exercise and performance of its duties under this Agreementrequest, including the reasonable costs and expenses of defending against any claim of liability arising therefromdirection, directly or indirectlyorder, or demand of enforcing the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, President, any Vice President, its rights under this Agreement; providedSecretary, that such covenant and agreement does not extend toor Assistant Secretary, and the (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event liable for which recovery from Warrant Agent is being sought. The Warrant Agent shall be authorized and protected and shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in connection accordance with its acceptance and administration of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statementorder, or other paper or document demand believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselgenuine. The Warrant Agent shall not be deemed Company agrees to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses, and liabilities, including judgments, costs, and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses, and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwillful misconduct. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or willful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties, and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act, or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act, or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate. Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate. The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 2 contracts
Sources: Warrant Agreement (Bbis Com Inc), Warrant Agreement (Enableware Technology Inc)
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive make any representations as to the validity, value or authorization of the Warrant Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and nonassessable. The Warrant Agent shall account promptly to the Company with respect to Warrants exercised and concurrently pay the Company, as provided in Section 4, all moneys received by the Warrant Agent upon the exercise of such Warrants. The Warrant Agent shall, upon request of the Company from time to time, on demand deliver to the Company such complete reports of registered ownership of the Warrants and such complete records of transactions with respect to the Warrants and the shares of Common Stock as the Company may request. The Warrant AgentAgent shall also make available to the Company and Paramount for inspection by their agents or employees, its reasonable from time to time as either of them may request, such original books of accounts and documented out-of-pocket expenses record (including reasonable and documented counsel fees and other disbursements incurred in original Warrant Certificates surrendered to the preparation, delivery, negotiation, amendment, administration and execution Warrant Agent upon exercise of this Agreement and Warrants) as may be maintained by the exercise and performance of its duties hereunder) Warrant Agent in connection with the services rendered hereunder by issuance and exercise of Warrants hereunder, such inspections to occur at the Warrant Agent's office as specified in Section 17, during normal business hours. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, own negligence or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being soughtmisconduct. The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the written opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel. Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, certificatePresident, statementany Vice President, its Secretary, or Assistant Secretary, (unless other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselevidence in Exhibit 4.7 respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine. The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwillful misconduct. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or willful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate. Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate. The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise Exhibit 4.7 deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 2 contracts
Sources: Warrant Agreement (Xytronyx Inc), Warrant Agreement (Xytronyx Inc)
Concerning the Warrant Agent. (a) The Company agrees that to pay to the Warrant Agent is entitledAgent, pursuant to the fee schedule mutually agreed upon by the parties hereto and provided separately on the date hereof, for all services rendered by it hereunder and, from time to time, to reasonable compensation for its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around the date hereof. The Warrant Agent shall also be entitled to receive from time to time, on demand of the Warrant Agent, its reasonable expenses and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder.
(b) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against any losscosts, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense expenses (including the reasonable fees and expenses of its legal counsel), losses or damages, which may be paid, incurred or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from any action taken, suffered its actions or omitted by the omissions as Warrant Agent in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreementpursuant hereto; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s its gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be each as determined by a final, final non-appealable judgment of a court of competent jurisdiction); further provided. Anything in this Agreement to the contrary notwithstanding, thatin no event shall the Warrant Agent be liable under or in connection with the Agreement for indirect, special, incidental, punitive or consequential losses or damages of any kind whatsoever, including but not limited to lost profits, whether or not foreseeable, even if the Warrant Agent has been advised of the possibility thereof and regardless of the form of action in which such damages are sought, and the Warrant Agent’s aggregate liability during to the Company, or any of the Company’s representatives or agents, under this Section 14(a) or under any other term or provision of this Agreement Agreement, whether in contract, or in tort, or otherwise, is expressly limited to, and shall not exceedexceed in any circumstances, the amounts paid under this Agreement one (1) year’s fees received by the Company to the Warrant Agent as fees and charges under this Agreement, but not including reimbursable expenses, during expenses previously reimbursed to the twelve months immediately preceding Warrant Agent by the event Company hereunder.
(c) Upon the assertion of a claim for which recovery from the Company may be required to indemnify the Warrant Agent is being sought. The Warrant Agent shall be authorized and protected and shall incur no liability for or in respect of any action takenAgent, suffered or omitted to be taken by it in connection with its acceptance and administration of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement, or other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counsel. The Warrant Agent shall not be deemed to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and the Warrant Agent shall be fully protected and shall incur no liability for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that of such assertion, and shall keep the other party reasonably advised with respect to material developments concerning such claim. However, failure to provide give such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at ’s right to and the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which obligations for indemnification may be sought hereunder hereunder.
(whether or not the indemnified party is an actual or potential party to such action or claimd) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required to indemnify the Warrant Agent for any amount paid or payable by the Warrant Agent in the settlement or compromise of, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time to time, the Company may provide Warrant Agent with instructions concerning the services performed by the Warrant Agent hereunder. In addition, at any time Warrant Agent may apply to any officer of the Company for instruction, and may consult with legal counsel for Warrant Agent or Company with respect to any matter arising in connection with the services to be performed by the Warrant Agent under this Agreement. Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither Neither party to this Agreement shall be liable to the other party for any consequential, indirect, specialpunitive, punitive special or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This .
(e) Notwithstanding anything contained herein to the contrary, the rights and obligations of the parties set forth in this Section 12 14 shall survive the resignation or discharge termination of the Warrant Agentthis Agreement, the expiration of the Warrants and/or the resignation, removal or replacement of the termination of this AgreementWarrant Agent.
Appears in 2 contracts
Sources: Warrant Agency Agreement (IceCure Medical Ltd.), Warrant Agency Agreement (IceCure Medical Ltd.)
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company and the Underwriters, from time to time, to reasonable compensation for its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to time, on demand the validity or value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses nonassessable.
(including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderb) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustment, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of fact contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s own gross negligence, bad faith, negligence or willful misconduct misconduct.
(which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. c) The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel.
(d) Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statement, order or other paper or document believed demand of the Company shall be sufficiently evidenced by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, an instrument signed by the proper Person Chairman of the Board of Directors, President or Persons, or otherwise upon the advice of counselany Vice President (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand.
(e) The Company agrees to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which its reasonable expenses hereunder; the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement or compromise ofexecution of its duties and powers hereunder except losses, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent expenses and liabilities arising as a result of the Company, which consent shall not be unreasonably withheld, conditioned Warrant Agent's gross negligence or delayed. From time to time, the Company may provide willful misconduct.
(f) The Warrant Agent with instructions concerning may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the services performed by Warrant Agent's own gross negligence or willful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent hereundershall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. In additionUpon such resignation the Company shall appoint in writing a new warrant agent. If the Company shall fail to make such appointment within a period of 30 days after it has been notified in writing of such resignation by the resigning Warrant Agent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company doing business in New York. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the warrant agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate.
(g) Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged, any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party, or any corporation succeeding to the services corporate trust business of the Warrant Agent or any new warrant agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holders of each Warrant Certificate.
(h) The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effect as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company or for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. other legal entity.
(i) The Warrant Agent shall not be held to have notice retain for a period of two years from the date of exercise any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of Warrant Certificate received by it upon such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementexercise.
Appears in 2 contracts
Sources: Warrant Agreement (Lightspace Corp), Warrant Agreement (Lightspace Corp)
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company and National, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to time, on demand the validity or value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses nonassessable.
(including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderb) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Exercise Price or the Redemption Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of fact contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross own negligence, bad faith, faith or willful misconduct misconduct.
(which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. c) The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company or for National) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel.
(d) Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statement, order or other paper or document believed demand of the Company shall be sufficiently evidenced by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, an instrument signed by the proper Person Chairman of the Board of Directors, Chief Executive Officer, President or Persons, or otherwise upon the advice of counselany Vice President (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand reasonably believed by it to have knowledge be genuine.
(e) The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities relating to any period prior to such resignation or resulting as a result of any event of which it was supposed the Warrant Agent's own negligence, bad faith or willful misconduct), after giving 30 days' prior written notice to receive notice thereof hereunderthe Company. At least 15 days prior to the date such resignation is to become effective, and the Warrant Agent shall be fully protected and shall incur no liability for failing to take action in connection therewith unless and until it has received cause a copy of such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is resignation to be made against mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights or any inability of the Warrant Agent to act as such hereunder. The , the Company shall be entitled appoint in writing a new warrant agent. If the Company shall fail to participate at its own expense make such appointment within a period of 15 days after it has been notified in writing of such resignation by the defense resigning Warrant Agent, then the Registered Holder of any such claim or proceedingWarrant Certificate may apply to any court of competent jurisdiction for the appointment of a new warrant agent. Promptly after the receipt Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of notice not less than $10,000,000 or a stock transfer company. After acceptance in writing of any demand or claim or such appointment by the commencement of any actionnew warrant agent is received by the Company, suitsuch new warrant agent shall be vested with the same powers, proceeding or investigationrights, the Company shall, duties and responsibilities as if a claim in respect thereof is to be made against it had been originally named herein as the Warrant Agent, notify without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company and shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate.
(f) Any corporation into which the Warrant Agent thereof or any new warrant agent may be converted or merged, any corporation resulting from any consolidation to which the Warrant Agent or any new warrant agent shall be a party, or any corporation succeeding to the corporate trust or stock transfer business of the Warrant Agent or any new warrant agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to the Warrant Agent under the provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holders of each Warrant Certificate.
(g) The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in writingthe same manner and to the same extent and with like effect as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall be entitled, at retain for a period of two years from the Company’s expense, to assume the defense date of exercise any Warrant Certificate received by it upon such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required to indemnify the Warrant Agent for any amount paid or payable by the Warrant Agent in the settlement or compromise of, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time to time, the Company may provide Warrant Agent with instructions concerning the services performed by the Warrant Agent hereunder. In addition, at any time Warrant Agent may apply to any officer of the Company for instruction, and may consult with legal counsel for Warrant Agent or Company with respect to any matter arising in connection with the services to be performed by the Warrant Agent under this Agreement. Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementexercise.
Appears in 1 contract
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive from time make any representations as to timethe validity, on demand value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agentnonassessable. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, own negligence or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being soughtmisconduct. The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel. Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, certificatePresident, statementany Vice President, its Secretary, or Assistant Secretary, (unless other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselevidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine. The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwillful misconduct. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or wilful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date of such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing. If the Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company that is a registered transfer agent under the Securities Exchange Act of 1934. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate. Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate. The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 1 contract
Sources: Warrant Agreement (Aris Corp/)
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive from time make any representations as to timethe validity, on demand value, or authorization of the Warrant AgentCertificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and nonassessable. The Warrant Agent shall not at any time be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, or to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be liable for any recital or statement of facts contained herein or for any action taken, suffered, or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its reasonable covenants and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred obligations contained in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderor in any Warrant Certificate, or (iii) be liable for any act or omission in connection with the services rendered hereunder by the Warrant Agentthis Agreement except for its own negligence or willful misconduct. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against may at any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense time consult with counsel satisfactory to it (including the reasonable fees and expenses of legal counsel), which who may be paid, incurred counsel for the Company) and shall incur no liability or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from responsibility for any action taken, suffered or omitted by the Warrant Agent it in connection good faith in accordance with the executionopinion or advice of such counsel. Any notice, acceptancestatement, administrationinstruction, exercise and performance of its duties under this Agreementrequest, including the reasonable costs and expenses of defending against any claim of liability arising therefromdirection, directly or indirectlyorder, or demand of enforcing the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, President, any Vice President, its rights under this Agreement; providedSecretary, that such covenant and agreement does not extend to, and the or Assistant Secretary (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event liable for which recovery from Warrant Agent is being sought. The Warrant Agent shall be authorized and protected and shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in connection accordance with its acceptance and administration of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statementorder, or other paper or document demand believed by it in good faith to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselgenuine. The Warrant Agent shall not be deemed Company agrees to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and hold it harmless against any and all losses, expenses, and liabilities, including judgments, costs, and reasonable counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses, and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwillful misconduct. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or willful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties, and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act, or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act, or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate. Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate. The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 1 contract
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive from time make any representations as to timethe validity, on demand value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants or Additional Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant or Additional Warrant is fully paid and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agentnonassessable. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, own negligence or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being soughtmisconduct. The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel. Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, certificatePresident, statementany Vice President, its Secretary, or Assistant Secretary, (unless other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselevidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine. The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder, it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwillful misconduct. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or willful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company that is a registered transfer agent under the Securities Exchange Act of 1934. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate. Any corporation into which the Warrant Agent or Company with respect any now warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate. The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 1 contract
Sources: Warrant Agreement (Food Court Entertainment Network Inc)
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitled, from time to time, to reasonable compensation for its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around the date hereof. The Warrant Agent shall also be entitled to receive from time to time, on demand of the Warrant Agent, its reasonable and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred a) Whenever in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), which may be paid, incurred or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from any action taken, suffered or omitted by the Warrant Agent in connection with the execution, acceptance, administration, exercise and performance of its duties under this AgreementAgreement the Warrant Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking, including suffering or omitting any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate signed by an Officer and delivered to the reasonable costs Warrant Agent; and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend tocertificate shall be full authorization to the Warrant Agent, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. The Warrant Agent shall be authorized and protected and shall incur no liability for or in respect of any action taken, suffered or omitted to be taken in good faith by it in connection with its acceptance and administration under the provisions of this Agreement in reliance upon such certificate.
(b) The Warrant Agent is hereby authorized and directed to accept advice or instructions with respect to the exercise and performance of its duties hereunder from any Officer, and to apply to any Officer for advice or instructions in reliance upon connection with its duties hereunder, and such advice or instructions shall be full authorization and protection to the Warrant Agent and the Warrant Agent shall incur no liability for or in respect of any Warrant Certificate instrument of assignment action taken, suffered or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement, or other paper or document believed omitted by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon in accordance with the advice or instructions of counsel. any Officer or for any delay in acting while waiting for such advice or instructions.
(c) The Warrant Agent shall not be deemed to have knowledge may execute and exercise any of the rights or powers hereby vested in it or perform any event of which it was supposed to receive notice thereof hereunderduty hereunder either itself or by or through its attorneys or agents, and the Warrant Agent shall not be fully protected answerable or accountable for any act, default, neglect or misconduct of any such attorneys or agents or for any loss to the Company or any other Person resulting from any such act, default, neglect or misconduct, absent gross negligence, bad faith or willful misconduct (each as finally determined by a court of competent jurisdiction) in the selection and continued employment thereof.
(d) No provision of this Agreement shall incur no liability for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by require the Warrant Agent of actual notice to expend or risk its own funds or otherwise incur any financial liability in the performance of any demand of its duties hereunder or claim in the exercise of its rights if it believes that repayment of such funds or the commencement of any action, suit, proceeding adequate indemnification against such risk or investigation (of which the Company liability is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required to indemnify the Warrant Agent for any amount paid or payable by the Warrant Agent in the settlement or compromise of, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time to time, the Company may provide Warrant Agent with instructions concerning the services performed by the Warrant Agent hereunder. In addition, at any time Warrant Agent may apply to any officer of the Company for instruction, and may consult with legal counsel for Warrant Agent or Company with respect to any matter arising in connection with the services to be performed by the Warrant Agent under this Agreement. Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementassured it.
Appears in 1 contract
Sources: Warrant Agreement (Anacomp Inc)
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive from time make many representations as to timethe validity, on demand value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agentnonassessable. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document of instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, own negligence or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being soughtmisconduct. The Warrant Agent shall be authorized and protected may at any time consult with counsel satisfactory to it and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel. Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, certificatePresident, statementany Vice President, its Secretary, or Assistant Secretary, (unless other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselevidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine. The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwillful misconduct. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or willful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court shall be a bank or trust company having a capital and surplus as shown by its last published report to its stockholders, of not less than Ten Million ($10,000,000.00) Dollars, or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the .Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate. Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate. The Warrant Agent, its subsidiaries and afflliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 1 contract
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to timethe validity, on demand value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any shares of stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses nonassessable.
(including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderb) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, own negligence or willful misconduct misconduct.
(which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. c) The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel.
(d) Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, certificatethe President, statementany Vice President, the Secretary, or any Assistant Secretary (unless other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselevidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine.
(e) The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement or compromise ofexecution of its duties and powers hereunder except losses, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent expenses and liabilities arising as a result of the Company, which consent shall not be unreasonably withheld, conditioned Warrant Agent's negligence or delayed. From time to time, willful misconduct.
(f) In the event of a dispute under this Agreement between the Company may provide Warrant Agent with instructions concerning the services performed and Tuschner regarding proceeds received by the Warrant Agent hereunder. In additionfrom the exercise of the Warrants, at any time the Warrant Agent shall have the right, but not the obligation, to bring an interpleader action to resolve such dispute.
(g) The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or willful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or any inability of the Warrant Agent to act as such hereunder, the Company shall appoint a new warrant agent in writing. If the Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent, then the Registered Holder of any Warrant Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act, or deed, the same shall be done at the expense of the Company for instructionand shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment, the Company shall file notice thereof with the resigning Warrant Agent and may consult with legal counsel for shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate.
(h) Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession a; warrant agent to be mailed to the Company and to the Registers Holder of each Warrant Certificate.
(i) The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hood or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damagesother legal entity. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this AgreementSECTION 16.
Appears in 1 contract
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to time, on demand the validity or value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses nonassessable.
(including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution b) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by Warrant Certificates to make or cause to be made any adjustment to the Warrant Agent. The Company also covenants and agrees provided in this Agreement, or to indemnify and to hold the Warrant Agent harmless against determine whether any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), fact exists which may require any such adjustment, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same, it shall not (i) be paid, incurred liable for any recital or suffered by statement of fact contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s own gross negligence, bad faith, negligence or willful misconduct misconduct.
(which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. c) The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel.
(d) Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statement, order or other paper or document believed demand of the Company shall be sufficiently evidenced by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, an instrument signed by the proper Person Chairman of the Board of Directors, Vice-Chairman or Persons, or otherwise upon the advice of counselSecretary (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand.
(e) The Company agrees to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which its reasonable expenses hereunder; the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent’s gross negligence or compromise ofwillful misconduct.
(f) The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent’s own negligence or willful misconduct), or entry into any judgment with respect toafter giving 60 days prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, any pending or threatened action or claim the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company’s expense. Upon such resignation the Company shall appoint in respect writing a new warrant agent. After acceptance in writing of which indemnification or contribution may be sought hereunder without such appointment by the written consent of new warrant agent is received by the Company, which consent such new warrant agent shall not be unreasonably withheldvested with the same powers, conditioned rights, duties and responsibilities as if it had been originally named herein as the warrant agent, without any further assurance, conveyance, act or delayed. From time deed; but if for any reason it shall be necessary or expedient to timeexecute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company may provide and shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with the resigning Warrant Agent with instructions concerning and shall forthwith cause a copy of such notice to be mailed to the services performed by Registered Holder of each Warrant Certificate.
(g) Any corporation into which the Warrant Agent hereunder. In additionor any new warrant agent may be converted or merged, at any time Warrant Agent may apply corporation resulting from any consolidation to any officer of which the Company for instruction, and may consult with legal counsel for Warrant Agent or Company with respect any new warrant agent shall be a party, or any corporation succeeding to the corporate trust business of the Warrant Agent or any matter arising in connection with the services new warrant agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under the provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holders of each Warrant Certificate.
(h) Except as otherwise provided in this Agreement. Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by Company for , if any action taken act or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in event which is required under this Agreement to otherwise occur on a Saturday, Sunday or any other day the contraryWarrant Agent is not open for business, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any then such act or failure to act hereunder even if event shall occur on the next successive day that party has been advised of is not a Saturday, Sunday or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of day in which the Warrant Agent, the expiration of the Warrants or the termination of this AgreementAgent is not open for business.
Appears in 1 contract
Sources: Warrant Agreement (Action Products International Inc)
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive from time make any representations as to timethe validity, on demand value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agentnonassessable. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost time be under any duty or expense responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment The Warrant Agent may at any time consult with counsel satisfactory to it (including the reasonable fees and expenses of legal counsel), which who may be paid, incurred counsel for the Company) and shall incur no liability or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from responsibility for any action taken, suffered or omitted by the Warrant Agent it in connection good faith in accordance with the executionopinion or advice of such counsel. Any notice, acceptancestatement, administrationinstruction, exercise and performance request, direction, order or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, President, any Vice President, its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectlySecretary, or of enforcing its rights under this Agreement; providedAssistant Secretary, that such covenant and agreement does not extend to, and the (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event liable for which recovery from Warrant Agent is being sought. The Warrant Agent shall be authorized and protected and shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in connection accordance with its acceptance and administration of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statement, order or other paper or document demand believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselgenuine. The Warrant Agent shall not be deemed Company agrees to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwilful misconduct. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or wilful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company for instructionor by such a court, shall be a bank or trust company having a capital and may consult with legal counsel for surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company that is a registered transfer agent under the Securities Exchange Act of 1934. Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate. The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 1 contract
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company and the Representatives, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to time, on demand the validity or value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses nonassessable.
(including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderb) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of fact contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross own negligence, bad faith, faith or willful misconduct misconduct.
(which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. c) The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company or for the Representatives) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel.
(d) Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statement, order or other paper or document believed demand of the Company shall be sufficiently evidenced by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, an instrument signed by the proper Person Chairman of the Board of Directors, Chief Executive Officer, President or Persons, or otherwise upon the advice of counselany Vice President (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand reasonably believed by it to have knowledge of any event of which it was supposed be genuine.
(e) The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which its reasonable expenses hereunder; the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless from and against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder EXCEPT losses, expenses and liabilities arising as a result of the Warrant Agent's negligence, bad faith or compromise ofwillful misconduct.
(f) The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own gross negligence or willful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint in writing a new warrant agent. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate.
(g) Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged, any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party, or any corporation succeeding to the services corporate trust business of the Warrant Agent or any new warrant agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holders of each Warrant Certificate.
(h) The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effect as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company or for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. other legal entity.
(i) The Warrant Agent shall not be held to have notice retain for a period of two years from the date of exercise any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of Warrant Certificate received by it upon such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementexercise.
Appears in 1 contract
Sources: Warrant Agreement (Integrated Physician Systems Inc)
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to time, on demand the validity or value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses nonassessable.
(including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderb) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of fact contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross own negligence, bad faith, faith or willful misconduct misconduct.
(which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. c) The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company or for Security Capital Trading, Inc.) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel.
(d) Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statement, order or other paper or document believed demand of the Company shall be sufficiently evidenced by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, an instrument signed by the proper Person Chairman of the Board of Directors, Chief Executive Officer, President or Persons, or otherwise upon the advice of counselany Vice President (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand reasonably believed by it to have knowledge of any event of which it was supposed be genuine.
(e) The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which its reasonable expenses hereunder; the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless from and against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence, bad faith or compromise ofwillful misconduct.
(f) The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own gross negligence or willful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint in writing a new warrant agent. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate.
(g) Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged, any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party, or any corporation succeeding to the services corporate trust business of the Warrant Agent or any new warrant agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holders of each Warrant Certificate.
(h) The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effect as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company or for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. other legal entity.
(i) The Warrant Agent shall not be held to have notice retain for a period of two years from the date of exercise any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of Warrant Certificate received by it upon such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementexercise.
Appears in 1 contract
Sources: Warrant Agreement (All Tech Investment Group Inc Et Al)
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive from time make any representations as to timethe validity, on demand value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agentnonassessable. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, except for its own negligence or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being soughtwilful misconduct. The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel. Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the Co-Chairman of the Board, certificatePresident, statementany Vice President, its Secretary, or Assistant Secretary, (unless other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselevidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine. The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwilful misconduct. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or wilful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company that is a registered transfer agent under the Securities Exchange Act of 1934. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate. Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate. The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 1 contract
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive from time make any representations as to timethe validity, on demand value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agentnonassessable. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against may at any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense time consult with counsel satisfactory to it (including the reasonable fees and expenses of legal counsel), which who may be paid, incurred counsel for the Company) and shall incur no liability or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from responsibility for any action taken, suffered or omitted by the Warrant Agent it in connection good faith in accordance with the executionopinion or advice of such counsel. Any notice, acceptancestatement, administrationinstruction, exercise and performance request, direction, order or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, President, any Vice President, its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectlySecretary, or of enforcing its rights under this Agreement; providedAssistant Secretary, that such covenant and agreement does not extend to, and the (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event liable for which recovery from Warrant Agent is being sought. The Warrant Agent shall be authorized and protected and shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in connection accordance with its acceptance and administration of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statement, order or other paper or document demand believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselgenuine. The Warrant Agent shall not be deemed Company agrees to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwilful misconduct. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or wilful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company for instruction, and may consult with legal counsel for or by such a Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate. The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 1 contract
Sources: Warrant Agreement (Piranha Interactive Publishing Inc)
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder ---------------------------- as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive from time make many representations as to timethe validity, on demand value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agentnonassessable. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document of instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, own negligence or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being soughtmisconduct. The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company or for ▇▇▇▇▇▇ ▇▇▇▇▇) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel. Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, certificatePresident, statementany Vice President, its Secretary, or Assistant Secretary, (unless other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselevidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine. The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement or compromise ofexecution of its duties and powers hereunder except losses, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent expenses and liabilities arising as a result of the Company, which consent shall not be unreasonably withheld, conditioned Warrant Agent's negligence or delayedwillful misconduct. From time to time, In the event of a dispute under this Agreement between the Company may provide Warrant Agent with instructions concerning the services performed and ▇▇▇▇▇▇ ▇▇▇▇▇ regarding proceeds received by the Warrant Agent hereunder. In additionfrom the exercise of the Warrants, at any time the Warrant Agent shall have the right, but not the obligation, to bring an interpleader action to resolve such dispute. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or willful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or any inability of the Warrant Agent to act as such hereunder, the Company shall appoint a new warrant agent in writing. If the Company shall fail to make such appointment within a period 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent, then the Registered Holder of any Warrant Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court shall be a bank or trust company having a capital and surplus as shown by its last published report to its stockholders, of not less than Ten Million ($10,000,000.00) Dollars, or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate. Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate. The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 1 contract
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive from time make any representations as to timethe validity, on demand value, or authorization of the Warrant AgentCertificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and nonassessable. The Warrant Agent shall not at any time be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, or to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be liable for any recital or statement of facts contained herein or for any action taken, suffered, or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its reasonable covenants and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred obligations contained in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderor in any Warrant Certificate, or (iii) be liable for any act or omission in connection with the services rendered hereunder by the Warrant Agentthis Agreement except for its own negligence or wilful misconduct. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against may at any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense time consult with counsel satisfactory to it (including the reasonable fees and expenses of legal counsel), which who may be paid, incurred counsel for the Company) and shall incur no liability or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from responsibility for any action taken, suffered or omitted by the Warrant Agent it in connection good faith in accordance with the executionopinion or advice of such counsel. Any notice, acceptancestatement, administrationinstruction, exercise and performance of its duties under this Agreementrequest, including the reasonable costs and expenses of defending against any claim of liability arising therefromdirection, directly or indirectlyorder, or demand of enforcing the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, President, any Vice President, its rights under this Agreement; providedSecretary, that such covenant and agreement does not extend to, and the or Assistant Secretary (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event liable for which recovery from Warrant Agent is being sought. The Warrant Agent shall be authorized and protected and shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in connection accordance with its acceptance and administration of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statementorder, or other paper or document demand believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselgenuine. The Warrant Agent shall not be deemed Company agrees to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses, and liabilities, including judgments, costs, and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses, and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwilful misconduct. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or wilful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties, and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act, or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act, or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning warrant agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate. Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Warrant Agent and its agents and subcontractors Any such successor warrant agent shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have promptly cause notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement its succession as warrant agent to be mailed to the contrary, neither party to this Agreement shall be liable Company and to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions Registered Holder of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damageseach Warrant Certificate. This Section 12 shall survive the resignation or discharge of the The Warrant Agent, the expiration its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Warrants or Company and otherwise deal with the termination of this Agreement.Company in the same manner and to the same extent and with like
Appears in 1 contract
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company and the Representative, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to time, on demand the validity or value or authorization of the Warrant AgentCertificates (except its countersignature thereof) or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and nonassessable.
(b) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Exercise Price or the Redemption Price provided in this Agreement, its reasonable and documented out-of-pocket expenses or to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and except with respect to the exercise and performance of its duties hereunderWarrant Certificates after actual notice of any adjustment of the Exercise Price). It shall not (i) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against be liable for any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost recital or expense (including the reasonable fees and expenses statement of legal counsel), which may be paid, incurred fact contained herein or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties (except its countersignature on the Warrant Certificates and such statements or recitals as describe the Warrant Agent or action taken or to be taken by it), (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross own negligence, bad faith, faith or willful misconduct misconduct.
(which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. c) The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company or for the Representative) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel.
(d) Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statement, order or other paper or document believed demand of the Company shall be sufficiently evidenced by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, an instrument signed by the proper Person Chairman of the Board of Directors, Chief Executive Officer, Chief Financial Officer, President or Persons, or otherwise upon the advice of counselany Vice President (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand reasonably believed by it to have knowledge of any event of which it was supposed be genuine.
(e) The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which its reasonable expenses hereunder; the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless from and against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant ------ Agent's negligence, bad faith or compromise ofwillful conduct.
(f) The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities resulting as a result of the Warrant Agent's own gross negligence or willful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect toinability of the Warrant Agent to act as such hereunder, the Company shall appoint in writing a new warrant agent. If the Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent, then the Registered Holder of any pending Warrant Certificate may apply to any court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or threatened action by such a court, shall be a bank or claim trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company. After acceptance in respect writing of which indemnification or contribution may be sought hereunder without such appointment by the written consent of new warrant agent is received by the Company, which consent such new warrant agent shall not be unreasonably withheldvested with the same powers, conditioned rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or delayed. From time deed; but if for any reason it shall be necessary or expedient to timeexecute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company may provide and shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate. Any corporation into which the Warrant Agent or any new warrant agent may be converted or merged, any corporation resulting from any consolidation to which the Warrant Agent or any new warrant agent shall be a party, or any corporation succeeding to the corporate trust business of the Warrant Agent or any new warrant agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to the Warrant Agent under the provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holders of each Warrant Certificate.
(g) The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with instructions concerning the services performed Company in the same manner and to the same extent and with like effect as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall retain for a period of two years from the date of exercise any Warrant Certificate received by it upon such exercise.
(i) The Warrant Agent shall account promptly to the Company with respect to Warrants exercised and concurrently pay to the Company all moneys received by the Warrant Agent hereunder. In addition, at any time Warrant Agent may apply to any officer for the purchase of securities or other property through the Company for instruction, and may consult with legal counsel for Warrant Agent or Company with respect to any matter arising in connection with the services to be performed by the Warrant Agent under this Agreement. Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion exercise of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this AgreementWarrants.
Appears in 1 contract
Sources: Warrant Agreement (Isonics Corp)
Concerning the Warrant Agent. The Company agrees that to pay to the Warrant Agent is entitled, from time to time, to reasonable compensation for its all services as agreed in accordance with a mutually agreed upon fee schedule dated on or around the date hereof. The Warrant Agent shall also be entitled to receive rendered by it hereunder and, from time to time, on demand of the Warrant Agent, its reasonable expenses and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify the Warrant Agent, and its officers, agents and directors for, and to hold the Warrant Agent each of them harmless against against, any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including incurred without negligence or willful misconduct on the reasonable fees and expenses part of legal counsel)the Warrant Agent, which may be paid, incurred or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from any action taken, suffered for anything done or omitted by the Warrant Agent or such indemnified party in connection with the execution, acceptance, administration, acceptance or administration of this Agreement or the exercise and or performance of its duties under this Agreementhereunder, including the reasonable costs and expenses of defending against any claim of liability arising therefromin the premises. The indemnification provided for hereunder shall survive the expiration of the Warrant, directly or indirectly, or the termination of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, Agreement and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred resignation or suffered by the Warrant Agent as a result of, or arising out of, removal of the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must . The costs and expenses of enforcing this right of indemnification shall also be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being soughtCompany. The Warrant Agent may conclusively rely upon and shall be authorized and protected by the Company and shall incur no liability for for, or in respect of any action taken, suffered or omitted to be taken by it in connection with with, its acceptance and administration of this Agreement and or the exercise and or performance of its duties hereunder in reliance upon any Warrant Certificate certificate or certificate for the Common Stock or for other securities of the Company, instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement, or other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person person or Personspersons, or otherwise upon the advice of counsel. The Warrant Agent shall not be deemed to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and the Warrant Agent shall be fully protected and shall incur no liability for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement counsel as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required to indemnify the Warrant Agent for any amount paid or payable by the Warrant Agent in the settlement or compromise of, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time to time, the Company may provide Warrant Agent with instructions concerning the services performed by the Warrant Agent hereunder. In addition, at any time Warrant Agent may apply to any officer of the Company for instruction, and may consult with legal counsel for Warrant Agent or Company with respect to any matter arising in connection with the services to be performed by the Warrant Agent under this Agreement. Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Companyset forth herein. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement in no event shall the Warrant Agent be liable to the other party for any consequential, indirect, special, punitive indirect or incidental damages under any provisions of this Agreement consequential loss or for any consequential, indirect, punitive, special or incidental damages arising out damage of any act or failure kind whatsoever (including but not limited to act hereunder lost profits), even if that party the Warrant Agent has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation loss or discharge damage and regardless of the Warrant Agent, the expiration form of the Warrants or the termination of this Agreementaction.
Appears in 1 contract
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to timethe validity, on demand value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agentnonassessable. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Exercise Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s own gross negligence, bad faith, negligence or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being soughtmisconduct. The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel. Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statement, order or other paper or document believed demand of the Company shall be sufficiently evidenced by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, an instrument signed by the proper Person Chairman of the Board or Personsany officer of the Company, or otherwise upon the advice of counsel(unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine. The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's gross negligence or compromise ofwillful misconduct. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own gross negligence or willful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of the Warrants at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its shareholders, of not less than $10,000,000 or a stock transfer company that is a registered transfer agent under the Securities Exchange Act of 1934. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate. Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate. The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 1 contract
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to time, on demand the validity or value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses nonassessable.
(including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderb) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of fact contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross own negligence, bad faith, faith or willful misconduct misconduct.
(which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. c) The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel.
(d) Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statement, order or other paper or document believed demand of the Company shall be sufficiently evidenced by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, an instrument signed by the proper Person Chairman of the Board of Directors, Chief Executive Officer, President or Persons, or otherwise upon the advice of counselany Vice President (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand reasonably believed by it to have knowledge of any event of which it was supposed be genuine.
(e) The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which its reasonable expenses hereunder; the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless from and against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence, bad faith or compromise ofwillful misconduct.
(f) The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own gross negligence or willful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint in writing a new warrant agent. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate.
(g) Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged, any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party, or any corporation succeeding to the services corporate trust business of the Warrant Agent or any new warrant agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and o the Registered Holders of each Warrant Certificate.
(h) The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner nd to the same extent and with like effect as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company or for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. other legal entity.
(i) The Warrant Agent shall not be held to have notice retain for a period of two years from the date of exercise any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of Warrant Certificate received by it upon such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementexercise.
Appears in 1 contract
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive make any representations as to the validity, value or authorization of the Warrant Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and nonassessable. The Warrant Agent shall account promptly to the Company with respect to Warrants exercised and concurrently pay the Company, as provided in Section 4, all moneys received by the Warrant Agent upon the exercise of such Warrants. The Warrant Agent shall, upon request of the Company from time to time, on demand deliver to the Company such complete reports of registered ownership of the Warrant Agent, its reasonable Warrants and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in such complete records of transactions with respect to the preparation, delivery, negotiation, amendment, administration and execution of this Agreement Warrants and the exercise shares of Common Stock as the Company may request. The Warrant Agent shall also make available to the Company for inspection by their agents or employees, from time to time as either of them may request, such original books of accounts and performance of its duties hereunder) record as may be maintained by the Warrant Agent in connection with the services rendered hereunder by issuance and exercise of Warrants hereunder, such inspections to occur at the Warrant Agent's office as specified in Section 17, during normal business hours. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any Registered Holder to make or cause to be made any adjustment of the Exercise Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, except for its own negligence or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being soughtwilful misconduct. The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection with its acceptance and administration of this Agreement and the exercise and performance of its duties hereunder good faith in reliance upon any Warrant Certificate instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement, or other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counsel. The Warrant Agent shall not be deemed to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and the Warrant Agent shall be fully protected and shall incur no liability for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required to indemnify the Warrant Agent for any amount paid or payable by the Warrant Agent in the settlement or compromise of, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time to time, the Company may provide Warrant Agent with instructions concerning the services performed by the Warrant Agent hereunder. In addition, at any time Warrant Agent may apply to any officer of the Company for instruction, and may consult with legal counsel for Warrant Agent or Company with respect to any matter arising in connection accordance with the services to be performed by the Warrant Agent under this Agreement. Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken opinion or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreement.
Appears in 1 contract
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates, or by any other act hereunder, be entitled deemed to receive from time make any representations as to timethe validity, on demand value or authorization of the Warrant Agent, its reasonable Certificates or the Class D Warrants represented thereby or of any securities or other property delivered upon exercise of any Class D Warrant or whether any stock issued upon exercise of any Class D Warrant is fully paid and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agentnonassessable. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, liabilityor to determine whether any fact exists that may require any such adjustments, damageor with respect to the nature or extent of any such adjustment, judgmentwhen made, fineor with respect to the method employed in making the same. It shall not (i) be liable for any recital or statement of facts contained herein or for any action taken, penalty, claim, demand, settlement, cost or expense suffered The Warrant Agent may at any time consult with counsel satisfactory to it (including the reasonable fees and expenses of legal counsel), which who may be paid, incurred counsel for the Company) and shall incur no liability or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from responsibility for any action taken, suffered or omitted by the Warrant Agent it in connection good faith in accordance with the executionopinion or advice of such counsel. Any notice, acceptancestatement, administrationinstruction, exercise and performance request, direction, order or demand of its duties under this Agreementthe Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectlyPresident, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, any Vice President and the Secretary, or any Assistant Secretary (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event liable for which recovery from Warrant Agent is being sought. The Warrant Agent shall be authorized and protected and shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in connection accordance with its acceptance and administration of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statement, order or other paper or document demand believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselgenuine. The Warrant Agent shall not be deemed Company agrees to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and pay the Warrant Agent shall reasonable compensation for its services hereunder and to reimburse it for its reasonable expenses hereunder as governed by a separate agreement to be fully protected and shall incur no liability for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by entered into between the Warrant Agent of actual notice of any demand or claim or and the commencement of any action, suit, proceeding or investigation (of which Company; the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and reasonable counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwillful misconduct. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or willful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holders of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult with legal counsel for shall be legally and validly executed and Any entity into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any entity resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any entity succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such entity is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate. The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Class D Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 1 contract
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company and May ▇▇▇▇▇, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to time, on demand the validity or value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses nonassessable.
(including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderb) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustment, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paidliable for any recital or statement of fact contained herein or for any action taken, incurred suffered or suffered by omitted
(c) The Warrant Agent may at any time consult with counsel satisfactory to it (who may be counsel for the Company) and shall incur no liability or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from responsibility for any action taken, suffered or omitted by the Warrant Agent it in connection good faith in accordance with the executionopinion or advice of such counsel.
(d) Any notice, acceptancestatement, administrationinstruction, exercise and performance request, direction, order or demand of its duties under this Agreementthe Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board of Directors, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly Vice-Chairman or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Secretary (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event liable for which recovery from Warrant Agent is being sought. The Warrant Agent shall be authorized and protected and shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in connection accordance with its acceptance and administration of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statement, order or other paper or document believed by it demand.
(e) The Company agrees to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counsel. The Warrant Agent shall not be deemed to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which its reasonable expenses hereunder; the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement or compromise ofexecution of its duties and powers hereunder except losses, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent expenses and liabilities arising as a result of the Company, which consent shall not be unreasonably withheld, conditioned Warrant Agent's gross negligence or delayed. From time to time, the Company may provide willful misconduct.
(f) The Warrant Agent with instructions concerning may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the services performed by Warrant Agent's own negligence or willful misconduct), after giving 30 days prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent hereundershall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. In additionUpon such resignation the Company shall appoint in writing a new warrant agent. If the Company shall fail to make such appointment within a period of 30 days after it has been notified in writing of such resignation by the resigning Warrant Agent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company doing business in New York, New York. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the warrant agent, without any further assurance, conveyance, act or deed; but if for instruction, and may consult with legal counsel for any reason it shall be necessary or expedient to execute and
(g) Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged, any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party, or any corporation succeeding to the services corporate trust business of the Warrant Agent or any new warrant agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holders of each Warrant Certificate.
(h) The Warrant Agent, its Subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effect as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company or for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. other legal entity.
(i) The Warrant Agent shall not be held retain for a period of two years from the date of exercise any Warrant Certificate received by it upon such exercise, marked to have notice of any change of authority of any person, until receipt of written notice indicate its cancellation thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This accordance with Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreement6(e) hereof.
Appears in 1 contract
Sources: Warrant Agreement (Apollo International of Delaware Inc)
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company and National, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to time, on demand the validity or value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses nonassessable.
(including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderb) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making
(c) The Warrant Agent may at any time consult with counsel satisfactory to it (who may be paid, incurred counsel for the Company or suffered by for National) and shall incur no liability or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from responsibility for any action taken, suffered or omitted by the Warrant Agent it in connection good faith in accordance with the executionopinion or advice of such counsel.
(d) Any notice, acceptancestatement, administrationinstruction, exercise and performance request, direction, order or demand of its duties under this Agreementthe Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board of Directors, including the reasonable costs and expenses of defending against Chief Executive Officer, President or any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Vice President (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event liable for which recovery from Warrant Agent is being sought. The Warrant Agent shall be authorized and protected and shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in connection accordance with its acceptance and administration of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statement, order or other paper or document demand reasonably believed by it to be genuine and genuine.
(e) The Company agrees to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counsel. The Warrant Agent shall not be deemed to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which its reasonable expenses hereunder; the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless from and against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's
(f) The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own gross negligence or compromise ofwillful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint in writing a new warrant agent. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company for instructionor by such a court, shall be a bank or trust company having a capital and may consult with legal counsel for Warrant Agent surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or Company with respect to any matter arising a stock transfer company. After acceptance in connection writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the services to be performed by the Warrant Agent under this Agreement. Warrant Agent same powers, rights, duties and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even responsibilities as if that party has it had been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the expiration same shall be done at the expense of the Warrants or Company and shall be legally and validly executed and delivered by the termination resigning Warrant Agent. Not later than the effective date of this Agreementany such appointment the Company shall file notice thereof with the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate.
Appears in 1 contract
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive from time make any representations as to timethe validity, on demand value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agentnonassessable. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, except for its own negligence or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being soughtwilful misconduct. The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel. Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, certificatePresident, statementany Vice President, its Secretary, or Assistant Secretary, (unless other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselevidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine. The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwilful misconduct. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or wilful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate. Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate. The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 1 contract
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to time, on demand the validity or value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses nonassessable.
(including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderb) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustment, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of fact contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s own gross negligence, bad faith, negligence or willful misconduct misconduct.
(which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. c) The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel.
(d) Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statement, order or other paper or document believed demand of the Company shall be sufficiently evidenced by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, an instrument signed by the proper Person Chairman of the Board of Directors, President or Persons, or otherwise upon the advice of counselany Vice President (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand.
(e) The Company agrees to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which its reasonable expenses hereunder; the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement or compromise ofexecution of its duties and powers hereunder except losses, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent expenses and liabilities arising as a result of the Company, which consent shall not be unreasonably withheld, conditioned Warrant Agent's gross negligence or delayed. From time to time, the Company may provide willful misconduct.
(f) The Warrant Agent with instructions concerning may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the services performed by Warrant Agent's own gross negligence or willful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent hereundershall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. In additionUpon such resignation the Company shall appoint in writing a new warrant agent. If the Company shall fail to make such appointment within a period of 30 days after it has been notified in writing of such resignation by the resigning Warrant Agent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company doing business in New York. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the warrant agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate.
(g) Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged, any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party, or any corporation succeeding to the services corporate trust business of the Warrant Agent or any new warrant agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holders of each Warrant Certificate.
(h) The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effect as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company or for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. other legal entity.
(i) The Warrant Agent shall not be held to have notice retain for a period of two years from the date of exercise any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of Warrant Certificate received by it upon such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementexercise.
Appears in 1 contract
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to time, on demand the validity or value or authorization of the Warrant Agent, its reasonable Certificates or the Redeemable Warrants represented thereby or of any securities or other property delivered upon exercise of any Redeemable Warrant or whether any stock issued upon exercise of any Redeemable Warrant is fully paid and documented out-of-pocket expenses nonassessable.
(including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderb) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Exercise Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustment, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of fact contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s own gross negligence, bad faith, faith or willful misconduct misconduct.
(which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. c) The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel.
(d) Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board of Directors, certificatePresident, statementany Vice President, or the Treasurer (unless other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselevidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand.
(e) The Company has agreed in a separate agreement to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation or its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent its reasonable expenses hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement or compromise ofexecution of its duties and powers hereunder except losses, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent expenses and liabilities arising as a result of the CompanyWarrant Agent's gross negligence, which consent shall not be unreasonably withheld, conditioned bad faith or delayed. From time to time, the Company may provide willful misconduct.
(f) The Warrant Agent with instructions concerning may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the services performed by Warrant Agent's own gross negligence, bad faith or willful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent hereundershall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. In additionUpon such resignation the Company shall appoint in writing a successor Warrant Agent. If the Company shall fail to make such appointment within a period of 30 days after it has been notified in writing of such resignation by the resigning Warrant Agent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a successor Warrant Agent. Any successor Warrant Agent, whether appointed by the Company or by such a court, shall be a bond or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company doing business in New York, New York. After acceptance in writing of such appointment by the successor Warrant Agent is received by the Company, such successor Warrant Agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent or Company with respect to any matter arising in connection with the services and shall forthwith cause a copy of such notice to be performed by mailed to the Registered Holder of each Warrant Certificate.
(g) Any corporation into which the Warrant Agent may be converted or merged, any corporation resulting from any consolidation to which the Warrant Agent shall be a party, or any corporation succeeding to the corporate trust business of the Warrant Agent shall be the Warrant Agent under this Agreement. Agreement without any further act, provided that such corporation is eligible for appointment as successor to the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon under the advice or opinion provisions of the preceding paragraph. Any such counsel. successor Warrant Agent shall not be held to have promptly cause notice of any change of authority of any personits succession, until receipt of and a written notice thereof from Company. Notwithstanding anything in this Agreement consent agreeing to act hereunder, as Warrant Agent to be mailed to the contrary, neither party to this Agreement shall be liable Company and to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions Registered Holders of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the each Warrant Certificate.
(h) The Warrant Agent, the expiration its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Redeemable Warrants or other securities of the Warrants Company and otherwise deal with the Company in the same manner and to the same extent and with like effect as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or the termination of this Agreementany other legal entity.
Appears in 1 contract
Concerning the Warrant Agent. 10.1 The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to timethe validity, on demand value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any stock or other property delivered upon exercise of the Warrants or whether any such stock is fully paid and documented outnon-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in assessable. The Warrant Agent shall not at any time be under any duty or responsibility to the preparation, delivery, negotiation, amendment, administration and execution holders of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant AgentCertificates to make or cause to be made any adjustment of the Exercise Price provided in this Agreement, or to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not (i) be liable for any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost recital or expense (including the reasonable fees and expenses statement of legal counsel), which may be paid, incurred fact contained herein or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered suffered, or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or the Warrant Certificates, or (iii) be liable for any act or omission in connection with this Agreement, except for its own negligence or willful misconduct.
10.2 The Warrant Agent may at any time consult with counsel satisfactory to it (who may be counsel for the Company) and shall incur no liability or responsibility for any action taken, suffered, or omitted by it in good faith in accordance with the opinion or advice of such counsel, other than as specified in clause (iii) of Section 10.1 herein.
10.3 Any notice, statement, instruction, request, direction, order, or demand of the Company to the Warrant Agent hereunder shall be sufficiently evidenced by an instrument signed by the Chairman, President, a Vice President, the Secretary, an Assistant Secretary, the Treasurer, or an Assistant Treasurer (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be liable for any action taken, suffered, or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand reasonably believed by the Warrant Agent to be genuine and to have been signed, sent or presented by the proper parties or party.
10.4 The Company agrees to pay the Warrant Agent reasonable compensation for its services hereunder and to reimburse it for its reasonable expenses hereunder. The Company further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses, and liabilities, including judgments, costs, and reasonable counsel fees, for anything done or omitted by the Warrant Agent in connection with the execution, acceptance, administration, exercise and performance execution of its duties under this Agreementand powers hereunder, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costsexcept losses, expenses, losses and damages incurred or suffered by the Warrant Agent liabilities arising as a result of, or arising out of, of the Warrant Agent’s gross negligence, bad faith, own negligence or willful misconduct misconduct.
10.5 The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (which gross negligence, bad faith, or willful misconduct must be determined by except liabilities arising as a final, non-appealable judgment result of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, own negligence or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. The Warrant Agent shall be authorized and protected and shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in connection with its acceptance and administration of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement, or other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise willful misconduct) upon the advice of counsel. The Warrant Agent shall not be deemed to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and the Warrant Agent shall be fully protected and shall incur no liability for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt appointment by the Company of notice a successor Warrant Agent (the “Successor Warrant Agent”). If the Warrant Agent notifies the Company of any demand or claim or the commencement of any action, suit, proceeding or investigationits intent to resign, the Company shall, if shall use its best efforts to appoint a claim Successor Warrant Agent. If the Company shall fail to make an appointment within a period of 60 days after it has been notified in respect thereof is to be made against writing of such resignation or after such removal by the resigning Warrant Agent, notify then the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at then the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required to indemnify the Warrant Agent for any amount paid or payable by the Warrant Agent in the settlement or compromise of, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time to time, the Company may provide Warrant Agent with instructions concerning the services performed by the Warrant Agent hereunder. In addition, at any time Warrant Agent may apply to any officer court of competent jurisdiction for the appointment of a Successor Warrant Agent. Any Succession Warrant Agent, whether appointed by the Company or by a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less that $10,000,000, or shall be a registered transfer agent under the Exchange Act. Any Successor Warrant Agent appointed hereunder shall execute, acknowledge and deliver to the Warrant Agent then in office, and to the Company, an instrument accepting such appointment under substantially the same terms and conditions as are contained herein. After acceptance in writing of such appointment by the Successor Warrant Agent is received by the Company, the Successor Warrant Agent shall be vested with the same powers, rights, duties, and responsibilities as if it originally had been named herein as the Warrant Agent, without any further assurance, conveyance, act, or deed; but if for any reason it shall be necessary or expedient for the former Warrant Agent to execute and deliver any further assurance, conveyance, act, or deed, the same shall be executed and delivered by the former Warrant Agent, at the expense of the Company for instructionCompany. Not later than 15 days after effective date of any such appointment, and may consult with legal counsel for the Successor Warrant Agent shall cause notice of the appointment of the Successor Warrant Agent to be mailed to the Registered Holders of the outstanding Warrants; however, the failure to mail such notice, or any defect contained therein, shall not affect the legality or validity of the appointment of the Successor Warrant Agent.
10.6 Any corporation into which the Warrant Agent or Company with respect any Successor Warrant Agent may be merged, or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with Successor Warrant Agent shall be a party, or any corporation succeeding to the services corporate trust business of the Warrant Agent or any Successor Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor Warrant Agent and promptly shall cause notice of its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by succession as Warrant Agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate then outstanding.
10.7 The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell the Warrants or other securities of the Company and otherwise deal with the Company in reliance upon any Company instructions or upon the advice or opinion of such counselsame manner and to the same extent and with like effect as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent shall not be held to have notice of from acting in any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to other capacity for the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement Company or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 1 contract
Concerning the Warrant Agent. 16.1. The Company agrees that the Warrant Agent is entitledshall act hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive from time make any representations as to timethe validity, on demand value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agentnonassessable.
16.2. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, own negligence or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being soughtmisconduct.
16.3. The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel. Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the President, certificate, statementits Secretary, or Assistant Secretary (unless other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselevidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine.
16.4. The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action its expenses hereunder in connection therewith unless and until accordance with the fees listed on Schedule I attached hereto; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent’s negligence or compromise ofwillful misconduct.
16.5. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent’s own negligence or willful misconduct), after giving 60 days’ prior written notice to the Company. At least 30 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company’s expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of 30 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new Warrant Agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but, if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instructionand shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment, the Company shall file notice thereof with the resigning Warrant Agent and may consult with legal counsel for shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate.
16.6. Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Warrant Agent and its agents and subcontractors Any such successor warrant agent shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have promptly cause notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement its succession as warrant agent to be mailed to the contrary, neither party to this Agreement shall be liable Company and to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions Registered Holder of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the each Warrant Agent, the expiration of the Warrants or the termination of this AgreementCertificate.
Appears in 1 contract
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company and Royal ▇▇▇▇▇▇, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder, be entitled deemed to receive from time make any representations as to time, on demand the validity or value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses nonassessable.
(including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderb) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustment, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of fact contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s own gross negligence, bad faith, negligence or willful misconduct misconduct.
(which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. c) The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel.
(d) Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statement, order or other paper or document believed demand of the Company shall be sufficiently evidenced by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, an instrument signed by the proper Person Chairman of the Board of Directors, Vice-Chairman or Persons, or otherwise upon the advice of counselSecretary (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand.
(e) The Company agrees to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which its reasonable expenses hereunder; the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement or compromise ofexecution of its duties and powers hereunder except losses, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent expenses and liabilities arising as a result of the Company, which consent shall not be unreasonably withheld, conditioned Warrant Agent's gross negligence or delayed. From time to time, the Company may provide willful misconduct.
(f) The Warrant Agent with instructions concerning may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the services performed by Warrant Agent's own negligence or willful misconduct), after giving 30 days prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent hereundershall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. In additionUpon such resignation the Company shall appoint in writing a new warrant agent. If the Company shall fail to make such appointment within a period of 30 days after it has been notified in writing of such resignation by the resigning Warrant Agent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company doing business in New York, New York. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the warrant agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate.
(g) Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged, any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party, or any corporation succeeding to the services corporate trust business of the Warrant Agent or any new warrant agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holders of each Warrant Certificate.
(h) The Warrant Agent, its Subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effect as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company or for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. other legal entity.
(i) The Warrant Agent shall not be held retain for a period of two years from the date of exercise any Warrant Certificate received by it upon such exercise, marked to have notice of any change of authority of any person, until receipt of written notice indicate its cancellation thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This accordance with Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreement6(e) hereof.
Appears in 1 contract
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date hereofprovisions of this Agreement. The Warrant Agent shall also not, by issuing and delivering Warrant certificates or by any other act hereunder be entitled deemed to receive from time make any representations as to timethe validity, on demand value or authorization of the Warrant Agent, its reasonable Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and documented out-of-pocket expenses nonassessable.
(including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderb) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, except for its own negligence or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being sought. wilful misconduct.
(c) The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel. TRANS GLOBAL SERVICES, power of attorney, endorsement, affidavit, letter, INC. WARRANT AGREEMENT
(d) Any notice, instructionstatement, instrument, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, certificatePresident, statementany Vice President, its Secretary, or Assistant Secretary, unless other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselevidence in respect thereof is specifically prescribed in this Agreement. The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine.
(e) The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwilful misconduct.
(f) The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or wilful misconduct), after giving thirty (30) days' prior written notice to the Company. At least fifteen (15) days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such under this Agreement, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of fifteen (15) days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason, it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate.
(g) Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate. TRANS GLOBAL SERVICES, INC. WARRANT AGREEMENT
(h) The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 1 contract
Concerning the Warrant Agent. The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive from time make any representations as to timethe validity, on demand value, or authorization of the Warrant AgentCertificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and nonassessable. The Warrant Agent shall not at any time be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Purchase Price or the Redemption Price provided in this Agreement, or to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be liable for any recital or statement of facts contained herein or for any action taken, suffered, or omitted by it in reliance on any warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its reasonable covenants and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred obligations contained in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunderor in any Warrant Certificate, or (iii) be liable for any act or omission in connection with the services rendered hereunder by the Warrant Agentthis Agreement except for its own negligence or wilful misconduct. The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against may at any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense time consult with counsel satisfactory to it (including the reasonable fees and expenses of legal counsel), which who may be paid, incurred counsel for the Company) and shall incur no liability or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from responsibility for any action taken, suffered or omitted by the Warrant Agent it in connection good faith in accordance with the executionopinion or advice of such counsel. Any notice, acceptancestatement, administrationinstruction, exercise and performance of its duties under this Agreementrequest, including the reasonable costs and expenses of defending against any claim of liability arising therefromdirection, directly or indirectlyorder, or demand of enforcing the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, President, any Vice President, its rights under this Agreement; providedSecretary, that such covenant and agreement does not extend toor Assistant Secretary, and the (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event liable for which recovery from Warrant Agent is being sought. The Warrant Agent shall be authorized and protected and shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in connection accordance with its acceptance and administration of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consent, certificate, statementorder, or other paper or document demand believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselgenuine. The Warrant Agent shall not be deemed Company agrees to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses, and liabilities, including judgments, costs, and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses, and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwilful misconduct. The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or wilful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties, and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act, or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act, or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate. Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate. The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants or other securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 1 contract
Sources: Warrant Agreement (Microenergy Inc)
Concerning the Warrant Agent. (a) The Company agrees that the Warrant Agent is entitledacts hereunder as agent and in a ministerial capacity for the Company, from time to time, to reasonable compensation for and its services as agreed in accordance with a mutually agreed upon fee schedule dated on or around duties shall be determined solely by the date provisions hereof. The Warrant Agent shall also not, by issuing and delivering Warrant Certificates or by any other act hereunder be entitled deemed to receive make any representations as to the validity, value or authorization of the Warrant Certificates or the Warrants represented thereby or of any securities or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise of any Warrant is fully paid and nonassessable.
(b) The Warrant Agent shall account promptly to the Company with respect to Warrants exercised and concurrently pay the Company, as provided in Section 4, all moneys received by the Warrant Agent upon the exercise of such Warrants. The Warrant Agent shall, upon request of the Company from time to time, on demand deliver to the Company such complete reports of registered ownership of the Warrants and such complete records of transactions with respect to the Warrants and the shares of Common Stock as the Company may request. The Warrant AgentAgent shall also make available to the Company for inspection by its agents or employees, its reasonable from time to time as it may request, such original books of accounts and documented out-of-pocket expenses record (including reasonable and documented counsel fees and other disbursements incurred in original Warrant Certificates surrendered to the preparation, delivery, negotiation, amendment, administration and execution Warrant Agent upon exercise of this Agreement and Warrants) as may be maintained by the exercise and performance of its duties hereunder) Warrant Agent in connection with the services rendered hereunder by issuance and exercise of Warrants hereunder, such inspections to occur at the Warrant Agent. 's office as specified in Section 17, during normal business hours.
(c) The Company also covenants and agrees to indemnify and to hold the Warrant Agent harmless against shall not at any losstime be under any duty or responsibility to any holder of Warrant Certificates to make or cause to be made any adjustment of the Exercise Price provided in this Agreement, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel), to determine whether any fact exists which may require any such adjustments, or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. It shall not (i) be paid, incurred liable for any recital or suffered by statement of facts contained herein or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in any Warrant Agent Certificate, or (iii) be liable for any act or omission in connection with the execution, acceptance, administration, exercise and performance of this Agreement except for its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s gross negligence, bad faith, own negligence or willful misconduct (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, that, the Warrant Agent’s aggregate liability during any term of this Agreement whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to the Warrant Agent as fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from Warrant Agent is being soughtmisconduct. The Warrant Agent shall may at any time consult with counsel satisfactory to it (who may be authorized and protected counsel for the Company) and shall incur no liability or responsibility for or in respect of any action taken, suffered or omitted to be taken by it in connection good faith in accordance with its acceptance and administration the opinion or advice of this Agreement and the exercise and performance of its duties hereunder in reliance upon any Warrant Certificate instrument of assignment or transfersuch counsel.
(d) Any notice, power of attorney, endorsement, affidavit, letter, noticestatement, instruction, request, direction, consentorder or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board, certificateChief Executive Officer, statementPresident, any Vice President, its Secretary, or any Assistant Secretary (unless other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselevidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be deemed liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand believed by it to have knowledge of any event of which it was supposed be genuine.
(e) The Company agrees to receive notice thereof hereunder, and pay the Warrant Agent shall be fully protected reasonable compensation for its services hereunder and shall incur no liability to reimburse it for failing to take action in connection therewith unless and until its reasonable expenses hereunder; it has received such notice in writing. Promptly after the receipt by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party), the Warrant Agent shall, if a claim in respect thereof is to be made against the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled, at the Company’s expense, to assume the defense of any such claim or proceeding. The Company shall not, without the written consent of the Warrant Agent, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required further agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and counsel fees, for any amount paid anything done or payable omitted by the Warrant Agent in the settlement execution of its duties and powers hereunder except losses, expenses and liabilities arising as a result of the Warrant Agent's negligence or compromise ofwilful misconduct.
(f) The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence or wilful misconduct), after giving 30 days' prior written notice to the Company. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Registered Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent inability of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time Warrant Agent to timeact as such hereunder, the Company may provide Warrant Agent with instructions concerning shall appoint a new warrant agent in writing. If the services performed Company shall fail to make such appointment within a period of 15 days after it has been notified in writing of such resignation by the resigning Warrant Agent hereunder. In additionAgent, at then the Registered Holder of any time Warrant Agent Certificate may apply to any officer court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a bank or trust company having a capital and surplus, as shown by its last published report to its stockholders, of not less than $10,000,000 or a stock transfer company. After acceptance in writing of such appointment by the new warrant agent is received by the Company, such new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company for instruction, and may consult shall be legally and validly executed and delivered by the resigning Warrant Agent. Not later than the effective date of any such appointment the Company shall file notice thereof with legal counsel for the resigning Warrant Agent and shall forthwith cause a copy of such notice to be mailed to the Registered Holder of each Warrant Certificate.
(g) Any corporation into which the Warrant Agent or Company with respect any new warrant agent may be converted or merged or any corporation resulting from any consolidation to which the Warrant Agent or any matter arising in connection with new warrant agent shall be a party or any corporation succeeding to the services trust business of the Warrant Agent shall be a successor warrant agent under this Agreement without any further act, provided that such corporation is eligible for appointment as successor to be performed by the Warrant Agent under this Agreementthe provisions of the preceding paragraph. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed to the Company and to the Registered Holder of each Warrant Certificate.
(h) The Warrant Agent, its subsidiaries and affiliates, and any of its or their officers or directors, may buy and hold or sell Warrants orother securities of the Company and otherwise deal with the Company in the same manner and to the same extent and with like effects as though it were not Warrant Agent. Nothing herein shall preclude the Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by from acting in any other capacity for the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreementother legal entity.
Appears in 1 contract
Concerning the Warrant Agent. The Company agrees that 7.1. Any instructions given to the Warrant Agent is entitledorally, from time to timeas permitted by any provision of this Warrant Agreement, to reasonable compensation for its services shall be confirmed in writing by the Company as agreed in accordance with a mutually agreed upon fee schedule dated on or around the date hereofsoon as practicable. The Warrant Agent shall also not be entitled liable or responsible and shall be fully authorized and protected for acting, or failing to receive act, in accordance with any oral instructions which do not conform with the written confirmation received in accordance with this Section 7.1.
7.2. The Company agrees to pay to the Warrant Agent reasonable compensation for all services rendered by the Warrant Agent under this Warrant Agreement in accordance with a fee schedule to be mutually agreed upon and, from time to time, on demand of the Warrant Agent, to reimburse the Warrant Agent for all of its reasonable expenses and documented out-of-pocket expenses (including reasonable and documented counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this Warrant Agreement and the exercise and performance of its duties hereunder) in connection with the services rendered hereunder by the Warrant Agent. The Company also covenants and agrees to indemnify the Warrant Agent for, and to hold the Warrant Agent it harmless against against, any and all loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including including, without limitation, the reasonable fees and expenses of legal counsel), which ) that may be paid, incurred or suffered by it, or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from any action taken, suffered or omitted by the Warrant Agent in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, the Warrant Agent’s without gross negligence, bad faith, faith or willful misconduct on the part of the Warrant Agent (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction); further provided, thatfor any action taken, suffered, or omitted to be taken by the Warrant Agent in connection with the execution, acceptance, administration, exercise and performance of its duties under this Warrant Agreement, including the costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or enforcing its rights hereunder. Sections 7.1 through and including Section 7.7 shall survive the expiration of the warrants and the termination of this Warrant Agreement and the resignation, replacement or removal of the Warrant Agent’s aggregate liability during any term . The costs and expenses incurred in enforcing this right of this Agreement whether in contract, or in tort, or otherwise, is limited to, and indemnification shall not exceed, be paid by the Company.
7.3. All amounts paid under this Agreement owed by the Company to the Warrant Agent as under this Warrant Agreement are due within 30 days of the Company’s receipt of an invoice. Delinquent payments are subject to a late payment charge of one and one-half percent (1.5%) per month commencing 45 days from the invoice date. The Company agrees to reimburse the Warrant Agent for any attorney’s fees and charges but not including reimbursable expenses, during the twelve months immediately preceding the event for which recovery from any other costs associated with collecting delinquent payments. No provision of this Warrant Agreement shall require Warrant Agent is being soughtto expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties under this Warrant Agreement or in the exercise of its rights.
7.4. The As agent for the Company hereunder, the Warrant Agent:
(a) shall have no duties or obligations other than those specifically set forth herein or as may subsequently be agreed to in writing by the Warrant Agent and the Company;
(b) shall be regarded as making no representations and having no responsibilities as to the validity, sufficiency, value, or genuineness of the Warrants or any Warrant Shares;
(c) shall not be obligated to take any legal action hereunder; if, however, the Warrant Agent determines in its sole discretion to take any legal action hereunder, and where the taking of such action might, in its judgment, subject or expose it to any expense or liability it shall not be required to act unless it has been furnished with an indemnity reasonably satisfactory to it;
(d) may rely on and shall be fully authorized and protected and shall incur no liability for in acting or in respect of any action taken, suffered or omitted failing to be taken by it in connection with its acceptance and administration of this Agreement and the exercise and performance of its duties hereunder in reliance act upon any Warrant Certificate instrument of assignment or transfercertificate, power of attorneyinstrument, endorsementopinion, affidavitnotice, letter, noticetelegram, instructiontelex, directionfacsimile transmission, consent, certificate, statement, email or other paper document or document security delivered to the Warrant Agent and believed by it to be genuine and to be duly signed, executed and, where necessary, guaranteed, verified or acknowledged, have been signed by the proper Person party or Personsparties;
(e) shall not be liable or responsible for any recital or statement contained in this Warrant Agreement, any Warrant Certificate, the Registration Statement or any other documents relating hereto or thereto;
(f) shall not be liable or responsible for any failure on the part of the Company to comply with any of its covenants and obligations relating to the Warrants, including without limitation obligations under applicable securities laws;
(g) may rely on and shall be fully authorized and protected in acting or failing to act upon the written, telephonic or oral instructions with respect to any matter relating to its duties as Warrant Agent covered by this Warrant Agreement (or supplementing or qualifying any such actions) of officers of the Company, and is hereby authorized and directed to accept instructions with respect to the performance of its duties hereunder from the Company or counsel to the Company, and may apply to the Company, for advice or instructions in connection with the Warrant Agent’s duties hereunder, and the Warrant Agent shall not be liable for any delay in acting while waiting for those instructions; any applications by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent under this Warrant Agreement and the date on or after which such action shall be taken or such omission shall be effective; the Warrant Agent shall not be liable for any action taken by, or otherwise upon omission of, the Warrant Agent in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than five (5) Business Days after the date such application is sent to the Company, unless the Company shall have consented in writing to any earlier date) unless prior to taking or omitting to take, as the case may be, any such action, the Warrant Agent shall have received written instructions in response to such application specifying the action to be taken or omitted;
(h) may consult with counsel satisfactory to the Warrant Agent, including its in-house counsel and counsel to the Company, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered, or omitted by it hereunder in the absence of bad faith and in accordance with the advice or opinion of such counsel;
(i) may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys or agents, and the Warrant Agent shall not be answerable or accountable for any act, omission, default, neglect or misconduct of any such attorneys or agents or for any loss to the Company, to the holders of the Warrants or any other Person resulting from any such act, omission, default, neglect or misconduct, absent gross negligence or willful misconduct in the selection and continued employment thereof (which gross negligence or bad faith must be determined by a final, non-appealable judgment of a court of competent jurisdiction);
(j) may (and any stockholder, affiliate, member, director, officer, agent, representative or employee of the Warrant Agent) may, subject to all applicable securities laws, buy, sell or deal in any of the Warrants or other securities of the Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company or otherwise act as fully and freely as though it were not the Warrant Agent under this Warrant Agreement. Nothing herein shall preclude the Warrant Agent or any such stockholder, affiliate, director, member, officer, agent, representative or employee from acting in any other capacity for the Company or for any other Person;
(k) shall have no responsibility to the Company, any holders of Warrants or any holders of Common Shares for interest or earnings on any moneys held by the Warrant Agent pursuant to this Warrant Agreement;
(l) is not authorized, and shall have no obligation, to pay any brokers, dealers, or soliciting fees to any Person; and
(m) shall not be required hereunder to comply with the laws or regulations of any country other than the United States of America or any political subdivision thereof.
7.5. In the absence of gross negligence or willful misconduct (which gross negligence or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction) on its part, the Warrant Agent shall not be liable for any action taken, suffered, or omitted by it or for any error of judgment made by it in the performance of its duties under this Warrant Agreement. Anything in this Warrant Agreement to the contrary notwithstanding, in no event shall the Warrant Agent be liable for special, indirect, incidental, consequential or punitive losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the possibility of such losses or damages and regardless of the form of action. The Warrant Agent shall have no responsibility for any liquidated damages that may be payable or paid to any Person under this Agreement for any failure by the Warrant Agent to deliver to a Holder a Definitive Certificate and/or Warrant Shares on the Company’s behalf. In addition, the Company shall indemnify and hold harmless the Warrant Agent against all claims made against the Warrant Agent for any such failure except that the Company shall not be obligated to provide any such indemnification if it is determined by a final, non-appealable judgment of a court of competent jurisdiction that such failure is due to the Warrant Agent’s gross negligence, bad faith or willful misconduct. Any liability of the Warrant Agent will be limited in the aggregate to the amount of fees (but not reimbursed costs) paid by the Company hereunder in the 12 months preceding the event for which recovery is sought. The Warrant Agent shall not be deemed liable for any failures, delays or losses, arising directly or indirectly out of conditions beyond its reasonable control including, but not limited to, acts of government, exchange or market ruling, suspension of trading, work stoppages or labor disputes, fires, civil disobedience, riots, rebellions, storms, electrical or mechanical failure, computer hardware or software failure, communications facilities failures including telephone failure, war, pandemics, epidemics, terrorism, insurrection, earthquakes, floods, acts of God or similar occurrences.
7.6. In the event any question or dispute arises with respect to have knowledge the proper interpretation of the Warrants or the Warrant Agent’s duties under this Warrant Agreement or the rights of the Company or of any event of which it was supposed to receive notice thereof hereunderHolder, and the Warrant Agent shall not be fully protected required to act and shall incur not be held liable or responsible for its refusal to act until the question or dispute has been judicially settled (and, if appropriate, in the Warrant Agent’s sole discretion, it may file a suit in interpleader or for a declaratory judgment for such purpose) by final judgment rendered by a court of competent jurisdiction, binding on all Persons interested in the matter which is no liability for failing longer subject to take action review or appeal, or settled by a written document in connection therewith unless form and until it has received such notice in writing. Promptly after the receipt substance satisfactory to Warrant Agent and executed by the Warrant Agent of actual notice of any demand or claim or the commencement of any action, suit, proceeding or investigation (of which the Company is not a party)and each such Holder. In addition, the Warrant Agent shallmay require for such purpose, if a claim but shall not be obligated to require, the execution of such written settlement by all the Holders and all other Persons that may have an interest in respect thereof is the settlement.
7.7. All funds received by Computershare under this Agreement that are to be distributed or applied by Computershare in the performance of Services (the “Funds”) shall be held by Computershare as agent for the Company and deposited in one or more bank accounts to be maintained by Computershare in its name as agent for the Company. Until paid pursuant to this Warrant Agreement, Computershare may hold or invest the Funds through such accounts in: (a) funds backed by obligations of, or guaranteed by, the United States of America; (b) debt or commercial paper obligations rated A-1 or P-1 or better by S&P Global Inc. (“S&P”) or M▇▇▇▇’▇ Investors Service, Inc. (“M▇▇▇▇’▇”), respectively; (c) Government and Treasury backed AAA-rated Fixed NAV money market funds that comply with Rule 2a-7 of the Investment Company Act of 1940, as amended; or (d) short term certificates of deposit, bank repurchase agreements, and bank accounts with commercial banks with Tier 1 capital exceeding $1 billion, or with an investment grade rating by S&P (LT Local Issuer Credit Rating), M▇▇▇▇’▇ (L▇.▇▇ Term Rating) and Fitch Ratings, Inc. (LT Issuer Default Rating) (each as reported by Bloomberg Finance L.P.). Computershare shall have no responsibility or liability for any diminution of the Funds that may result from any deposit or investment made against by Computershare in accordance with this paragraph, including any losses resulting from a default by any bank, financial institution or other third party. Computershare may from time to time receive interest, dividends or other earnings in connection with such deposits or investments. Computershare shall not be obligated to pay such interest, dividends or earnings to the Company, promptly notify the Company thereof in writing; provided that the failure to provide such notice shall not affect the rights of the Warrant Agent hereunder. The Company shall be entitled to participate at its own expense in the defense of any such claim holder or proceeding. Promptly after the receipt by the Company of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Company shall, if a claim in respect thereof is to be made against the Warrant Agent, notify the Warrant Agent thereof in writingother party. The Warrant Agent shall be entitled, at forward funds received for warrant exercises in a given month by the 5th business day of the following month by wire transfer to an account designated by the Company’s expense.
7.8. The Company represents and warrants that (a) it is duly incorporated and validly existing under the laws of its jurisdiction of incorporation, (b) the offer and sale of the Warrants and the execution, delivery and performance of all transactions contemplated thereby (including this Warrant Agreement) have been duly authorized by all necessary corporate action and will not result in a breach of or constitute a default under the notice of articles, articles, bylaws or any similar document of the Company or any indenture, agreement or instrument to assume which it is a party or is bound, (c) this Warrant Agreement has been duly executed and delivered by the defense Company and constitutes the legal, valid, binding and enforceable obligation of any such claim the Company, (d) the Warrants will comply in all material respects with all applicable requirements of law and (e) to the best of its knowledge, there is no litigation pending or proceedingthreatened as of the date hereof in connection with the offering of the Warrants.
7.9. The Company shall notprovide an opinion of counsel prior to the Warrant Agent setting up a reserve of Warrants and Warrant Shares to be used in connection with the exercise of the Warrants stating that (i) Warrants or such Warrant Shares were offered, without sold or issued as part of an offering that was registered in compliance with the written consent Securities Act of 1933 (the “1933 Act”), as amended, or are exempt from such registration and the shares are “covered securities” under Section 18 of the 1933 Act, and (ii) such shares will be validly issued, fully paid and non-assessable upon exercise of the Warrants in accordance with their terms.
7.10. Set forth in Annex D hereto is a list of the names and specimen signatures of the persons authorized to act for the Company under this Warrant Agreement. The Company shall, from time to time, certify to you the names and signatures of any other persons authorized to act for the Company under this Warrant Agreement.
7.11. The Warrant Agent, or any successor to it hereafter appointed, may resign its duties and be discharged from all further duties and liabilities hereunder after giving thirty (30) days’ notice in writing to the Company, or such shorter period of time agreed to by the Company. The Company may terminate the services of the Warrant Agent, effect the settlement or compromise ofany successor Warrant Agent, or consent after giving thirty (30) days’ notice in writing to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. The Company shall not be required to indemnify the Warrant Agent for any amount paid or payable by successor Warrant Agent, or such shorter period of time as agreed. In the event that the transfer agency relationship in effect between the Company and the Warrant Agent in the settlement or compromise ofterminates, or entry into any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder without the written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. From time to time, the Company may provide Warrant Agent with instructions concerning the services performed by the Warrant Agent hereunder. In addition, at any time Warrant Agent may apply to any officer of the Company for instruction, and may consult with legal counsel for Warrant Agent or Company with respect to any matter arising in connection with the services to will be performed by the Warrant Agent under this Agreement. Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Warrant Agent shall not be held deemed to have notice of any change of authority of any person, until receipt of written notice thereof from Company. Notwithstanding anything in this Agreement to the contrary, neither party to this Agreement shall be liable to the other party for any consequential, indirect, special, punitive or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility or likelihood of such damages. This Section 12 shall survive the resignation or discharge of the Warrant Agent, the expiration of the Warrants or the termination of this Agreement.resigned a
Appears in 1 contract
Sources: Warrant Agent Agreement (BriaCell Therapeutics Corp.)