Exercise of Rights; Exercise Price; Expiration Date of Rights. 7.1 Subject to Section 7.5 hereof, the registered holder of any Right Certificate may exercise the Rights evidenced thereby (except as otherwise provided herein) in whole or in part at any time after the Distribution Date upon surrender of the Right Certificate, with the form of election to purchase and the certificate on the reverse side thereof duly executed, to the Rights Agent at the office or offices of the Rights Agent designated for such purpose, together with payment of the aggregate Exercise Price for the total number of one one-thousandths of a share of Preferred Stock (or other securities, cash or other assets, as the case may be) as to which such surrendered Rights are then exercised, at or prior to the earlier of (a) the Close of Business on the tenth anniversary of the date of this Agreement (the "Final Expiration Date"), (b) the time at which the Rights are redeemed as provided in Section 23 hereof or (c) the time at which such Rights are exchanged as provided in Section 24 hereof (the earliest of (a), (b) or (c) being herein referred to as the "Expiration Date"). Except as set forth in Section 7.5 hereof and notwithstanding any other provision of this Agreement, any Person who prior to the Distribution Date becomes a record holder of shares of Common Stock of the Company may exercise all of the rights of a registered holder of a Right Certificate with respect to the Rights associated with such shares of Common Stock of the Company in accordance with the provisions of this Agreement, as of the date such Person becomes a record holder of shares of Common Stock of the Company. 7.2 The Exercise Price for each one one-thousandth of a share of Preferred Stock pursuant to the exercise of a Right shall initially be one hundred dollars ($100), shall be subject to adjustment from time to time as provided in Section 11 and Section 13 hereof and shall be payable in lawful money of the United States of America in accordance with Section 7.3 below. 7.3 As promptly as practicable following the Distribution Date, the Company shall deposit with a corporation, trust, bank or similar institution in good standing organized under the laws of the United States or any State of the United States, which is authorized under such laws to exercise corporate trust or stock transfer powers and is subject to supervision or examination by a federal or state authority (such institution is hereinafter referred to as the "Depositary Agent"), certificates representing the shares of Preferred Stock that may be acquired upon exercise of the Rights and the Company shall cause such Depositary Agent to enter into an agreement pursuant to which the Depositary Agent shall issue receipts representing interests in the shares of Preferred Stock so deposited. Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase and the certificate on the reverse side thereof duly executed, accompanied by payment of the Exercise Price for the shares to be purchased and an amount equal to any applicable transfer tax (as determined by the Rights Agent) in cash, or by certified check or bank draft payable to the order of the Company, the Rights Agent shall, subject to Section 20.11 hereof, thereupon promptly (a) requisition from the Depositary Agent (or make available, if the Rights Agent is the Depository Agent) depository receipts or certificates for the number of one one-thousandths of a share of Preferred Stock to be purchased and the Company hereby irrevocably authorizes the Depositary Agent to comply with all such requests, (b) when appropriate, requisition from the Company the amount of cash, if any, to be paid in lieu of issuance of fractional shares in accordance with Section 14 hereof, (c) promptly after receipt of such certificates or depositary receipts, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (d) when appropriate, after receipt promptly deliver such cash to or upon the order of the registered holder of such Right Certificate. In the event that the Company is obligated to issue other securities (including Common Stock) of the Company, pay cash or distribute other property pursuant to Section 11.1 hereof, the Company will make all arrangements necessary so that such other securities, cash or other property are available for distribution by the Rights Agent, if and when appropriate. The payment of the Exercise Price may be made in cash or by certified or bank check payable to the order of the Company, or by wire transfer of immediately available funds to the account of the Company (provided that notice of such wire transfer shall be given by the holder of the related Right to the Rights Agent). 7.4 In case the registered holder of any Right Certificate shall exercise less than all the Rights evidenced thereby, a new Right Certificate evidencing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent and delivered to the registered holder of such Right Certificate or to his duly authorized assigns, subject to the provisions of Section 14 hereof. 7.5 Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11.1.2 Event or Section 13 Event, any Rights beneficially owned by (a) an Acquiring Person or any Associate or Affiliate of an Acquiring Person, (b) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring Person) who becomes a transferee after the Acquiring Person becomes such or (c) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring Person) who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and receives such Rights pursuant to either (i) a transfer (whether or not for consideration) from the Acquiring Person to holders of equity interests in such Acquiring Person or to any Person with whom the Acquiring Person has any continuing agreement, arrangement or understanding regarding the transferred Rights, the shares of Common Stock of the Company associated with such Rights or the Company, or (ii) a transfer which the Board of Directors of the Company has determined is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 7.5, shall be null and void without any further action and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under any provision of this Agreement or otherwise. The Company shall use all reasonable efforts to ensure that the provisions of this Section 7.5 and Section 4.2 hereof are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or any Affiliates or Associates of an Acquiring Person or any transferee of any of them hereunder. 7.6 Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless such registered holder shall have (a) completed and signed the certificate contained in the form of election to purchase set forth on the reverse side of the Right Certificate surrendered for such exercise and (b) provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company shall reasonably request.
Appears in 2 contracts
Sources: Shareholders' Rights Agreement (Tweeter Home Entertainment Group Inc), Shareholders' Rights Agreement (Tweeter Home Entertainment Group Inc)
Exercise of Rights; Exercise Price; Expiration Date of Rights. 7.1 (a) Subject to Section 7.5 7(e) hereof, the registered holder of any Right Certificate may exercise the Rights evidenced thereby (except as otherwise provided herein) in whole or in part at any time after the Distribution Date upon surrender of the Right Certificate, with the form of election to purchase and the certificate on the reverse side thereof duly executed, to the Rights Agent at the office or offices of the Rights Agent designated for such purpose, together with payment of the aggregate Exercise Price for the total number of one oneten-thousandths of a share of Preferred Stock (or other securities, cash or other assets, as the case may be) as to which such surrendered Rights are then exercised, at or prior to the earlier of (ai) the Close of Business on the tenth anniversary of the date of this Agreement (the "Final Expiration Date"), (bii) the time at which the Rights are redeemed as provided in Section 23 hereof or (ciii) the time at which such Rights are exchanged as provided in Section 24 hereof (the earliest earlier of (ai), (bii) or (ciii) being herein referred to as the "Expiration Date"). Except as set forth in Section 7.5 7(e) hereof and notwithstanding any other provision of this Agreement, any Person who prior to the Distribution Date becomes a record holder of shares of Common Stock of the Company may exercise all of the rights of a registered holder of a Right Certificate with respect to the Rights associated with such shares of Common Stock of the Company in accordance with the provisions of this Agreement, as of the date such Person becomes a record holder of shares of Common Stock of the Company.
7.2 (b) The Exercise Price for each one oneten-thousandth of a share of Preferred Stock pursuant to the exercise of a Right shall initially be one hundred dollars Eighty Dollars ($10080.00), shall be subject to adjustment from time to time as provided in Section 11 and Section 13 hereof and shall be payable in lawful money of the United States of America in accordance with Section 7.3 7(c) below.
7.3 (c) As promptly as practicable following the Distribution Date, the Company shall deposit with a corporation, trust, bank or similar institution in good standing organized under the laws of the United States or any State of the United States, which is authorized under such laws to exercise corporate trust or stock transfer powers and is subject to supervision or examination by a federal or state authority (such institution is hereinafter referred to as the "Depositary Agent"), certificates representing the shares of Preferred Stock that may be acquired upon exercise of the Rights and the Company shall cause such Depositary Agent to enter into an agreement pursuant to which the Depositary Agent shall issue receipts representing interests in the shares of Preferred Stock so deposited. Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase and the certificate on the reverse side thereof duly executed, accompanied by payment of the Exercise Price for the shares to be purchased and an amount equal to any applicable transfer tax (as determined by the Rights Agent) in cash, or by certified check or bank draft payable to the order of the CompanyCompany or by money order, the Rights Agent shall, subject to Section 20.11 20(k) hereof, thereupon promptly (ai) requisition from the Depositary Agent (or make available, if the Rights Agent is the Depository Depositary Agent) depository depositary receipts or certificates for the number of one oneten-thousandths of a share of Preferred Stock to be purchased and the Company hereby irrevocably authorizes the Depositary Agent to comply with all such requests, (bii) when appropriate, requisition from the Company the amount of cash, if any, to be paid in lieu of issuance of fractional shares in accordance with Section 14 hereof, (ciii) promptly after receipt of such certificates or depositary receipts, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (div) when appropriate, after receipt promptly deliver such cash to or upon the order of the registered holder of such Right Certificate. In the event that the Company is obligated to issue other securities (including Common Stock) of the Company, pay cash or distribute other property pursuant to Section 11.1 11(a) hereof, the Company will make all arrangements necessary so that such other securities, cash or other property are available for distribution by the Rights Agent, if and when appropriate. The payment of the Exercise Price may be made in cash or by certified or bank check payable to the order of the Company, or by money order or wire transfer of immediately available funds to the account of the Company (provided that notice of such wire transfer shall be given by the holder of the related Right to the Rights Agent).
7.4 (d) In case the registered holder of any Right Certificate shall exercise less than all the Rights evidenced thereby, a new Right Certificate evidencing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent and delivered to the registered holder of such Right Certificate or to his duly authorized assigns, subject to the provisions of Section 14 hereof.
7.5 (e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11.1.2 11(a)(ii) Event or Section 13 Event, any Rights beneficially owned by (ai) an Acquiring Person, an Adverse Person or any Associate or Affiliate of an Acquiring Person or an Adverse Person, (bii) a transferee of an Acquiring Person or an Adverse Person (or of any Associate or Affiliate of an Acquiring Person or an Adverse Person) who becomes a transferee after the Acquiring Person or Adverse Person becomes such or (ciii) a transferee of an Acquiring Person or an Adverse Person (or of any Associate or Affiliate of an Acquiring Person or an Adverse Person) who becomes a transferee prior to or concurrently with the Acquiring Person or Adverse Person becoming such and receives such Rights pursuant to either (iA) a transfer (whether or not for consideration) from the Acquiring Person or Adverse Person to holders of equity interests in such Acquiring Person or Adverse Person or to any Person with whom the Acquiring Person or Adverse Person has any continuing agreement, arrangement or understanding regarding the transferred Rights, the shares of Common Stock of the Company associated with such Rights or the Company, or (iiB) a transfer which the Board of Directors of the Company has determined is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 7.57(e), shall be null and void without any further action and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under any provision of this Agreement or otherwise. The Company shall use all reasonable efforts to ensure that the provisions of this Section 7.5 7(e) and Section 4.2 4(b) hereof are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or Adverse Person or any Affiliates or Associates of an Acquiring Person or an Adverse Person or any transferee of any of them hereunder.
7.6 (f) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless such registered holder shall have (ai) completed and signed the certificate contained in the form of election to purchase set forth on the reverse side of the Right Certificate surrendered for such exercise exercise, and (bii) provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company shall reasonably request.
Appears in 2 contracts
Sources: Shareholder Rights Agreement (Mac-Gray Corp), Shareholder Rights Agreement (Mac-Gray Corp)
Exercise of Rights; Exercise Price; Expiration Date of Rights. 7.1 Subject to Section 7.5 hereof, the registered holder Registered Holder of any Right Certificate may exercise the Rights evidenced thereby (except as otherwise provided herein) in whole or in part at any time after commencing with the Distribution Date upon surrender of the Right Certificate, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, to the Rights Agent at the office or offices of the Rights Agent designated for such purpose, accompanied by a signature guarantee and such other documentation as the Rights Agent may require, together with full payment of the aggregate Exercise Price for the total number of one one-thousandths of a share of Preferred Stock Share (or other securities, cash or other assets, as the case may be) as to which such surrendered Rights are then exercised, at or prior to the earlier of (a) the Close of Business on the tenth anniversary of the date of this Agreement (the "“Final Expiration Date"”), (b) the time at which the Rights are redeemed terminated as provided in Section 23 hereof hereof, (c) the closing of any merger or other acquisition transaction involving the Company pursuant to an agreement of the type described in Sections 1.4.1(4) and 13.6 at which time the Rights are terminated, or (cd) the time at which such Rights are exchanged as provided in Section 24 hereof (the earliest of (a), (b), (c) or (cd) being herein referred to as the "“Expiration Date"”). Except as set forth in Section 7.5 hereof and notwithstanding any other provision of this Agreement, any Person who prior to the Distribution Date becomes a record holder Registered Holder of shares of Common Stock Ordinary Shares of the Company may exercise all of the rights of a registered holder Registered Holder of a Right Certificate with respect to the Rights associated with such shares of Common Stock Ordinary Shares of the Company in accordance with the provisions of this Agreement, as of the date such Person becomes a record holder Registered Holder of shares of Common Stock Ordinary Shares of the Company.
7.2 The Exercise Price for each one one-thousandth of a share of Preferred Stock Share pursuant to the exercise of a Right shall initially be one hundred dollars ($100)Two Hundred United States Dollars US$200, shall be subject to adjustment from time to time as provided in Section 11 and Section 13 hereof and shall be payable in lawful money of the United States of America in accordance with Section 7.3 below.
7.3 As Either prior to or as promptly as practicable following the Distribution Date, the Company shall deposit with a corporation, trust, bank or similar institution in good standing organized under the laws of the United States or any State of the United States, which is authorized under such laws to exercise corporate trust or stock share transfer powers and is subject to supervision or examination by a federal or state authority (such institution is hereinafter referred to as the "“Depositary Agent"”), certificates representing the shares of Preferred Stock Shares that may be acquired upon exercise of the Rights and the Company shall cause such Depositary Agent to enter into an agreement with such Depositary Agent pursuant to which the Depositary Agent shall issue depositary receipts representing interests in the shares Preferred Shares so deposited and take the steps required pursuant to Section 9.3 regarding the registration of Preferred Stock so depositedthe securities purchasable upon the exercise of such Rights. Upon Except as otherwise provided herein, upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, accompanied by a signature guarantee and such other documentation as the Rights Agent may require together with payment of the full Exercise Price for the shares Preferred Shares (or other securities, cash or other assets, as the case may be) to be purchased and an amount equal to any applicable transfer tax or governmental charge (as determined by the Rights Agent) in cash, or by certified check or bank draft payable to the order of the Company, the Rights Agent shall, subject to Section 20.11 hereof, thereupon promptly (a) requisition from the Depositary Agent (or make available, if the Rights Agent is the Depository Agent) depository receipts or certificates for representing the number of one one-thousandths of a share of Preferred Stock Share to be purchased and the Company hereby irrevocably authorizes agrees to cause the Depositary Agent and any such transfer agent to comply with all deliver such requestsdepository receipts or certificates to the Rights Agent, (b) when appropriatenecessary to comply with this Agreement, requisition from the Company the amount of cash, if any, to be paid in lieu of issuance of fractional shares in accordance with Section 14 hereof, (c) promptly after receipt of such certificates or or, if applicable, depositary receipts, cause the same to be delivered to or upon the order of the registered holder Registered Holder of such Right Certificate, registered in such name or names as may be designated by such holder and (d) when appropriate, after receipt promptly deliver such cash to or upon the order of the registered holder Registered Holder of such Right Certificate. In the event that the Company is obligated to issue other securities (including Common StockOrdinary Shares) of the Company, pay cash or distribute other property pursuant to Section 11.1 hereof, the Company will make all arrangements necessary so that such other securities, cash cash, or other property are is available for distribution by the Rights Agent, if and when appropriatenecessary to comply with this Agreement. The payment of the Exercise Price may be made in cash or by certified or bank check payable to the order of the Company, or by wire transfer of immediately available funds to the account of the Company (provided that notice of such wire transfer shall be given by the holder of the related Right to the Rights Agent). The Rights Agent shall be entitled to rely, and shall be protected in relying, on a certificate duly executed by an officer of the Company to the effect that the Distribution Date has occurred.
7.4 In case the registered holder Registered Holder of any Right Certificate shall exercise exercises less than all the Rights evidenced thereby, a new Right Certificate evidencing Rights equivalent to the Rights remaining unexercised shall be issued and delivered by the Company to the Rights Agent and countersigned and delivered by the Rights Agent and delivered to the registered holder Registered Holder of such Right Certificate or to his duly authorized assigns, subject to the provisions of Section 14 hereof.
7.5 Notwithstanding anything in any provision or language of this Agreement that might be construed to suggest the contrary, from and after the first occurrence of a Section 11.1.2 Event or Section 13 Event, any Rights beneficially owned by (a) an Acquiring Person or any Associate or Affiliate of an Acquiring Person, (b) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring Person) who becomes a transferee after the Acquiring Person becomes such or (c) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring Person) who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and receives such Rights pursuant to either (i) a transfer (whether or not for consideration) from the Acquiring Person to holders of equity interests in such Acquiring Person or to any Person with whom the Acquiring Person has any continuing agreement, arrangement or understanding regarding the transferred Rights, the shares of Common Stock Ordinary Shares of the Company associated with such Rights or the Company, or (ii) a transfer which the Board of Directors of the Company has determined is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 7.5, and subsequent transferees, either direct transferees or transferees through one or more intermediate transferees, of such Persons, shall be null and void without any further action and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under any provision of this Agreement or otherwise. The Company shall use all reasonable efforts to ensure that the provisions of this Section 7.5 and Section 4.2 hereof are complied with, but neither it nor the Rights Agent shall have no any liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations determination with respect to an Acquiring Person or any Affiliates or Associates of an Acquiring Person or any transferee of any of them hereunder.
7.6 Notwithstanding anything in any provision or language of this Agreement that might be construed to suggest the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action with respect to a registered holder Registered Holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless such registered holder shall have Registered Holder has (a) properly completed and duly signed the certificate contained in the form of election to purchase set forth on the reverse side of the Right Certificate surrendered for such exercise and (b) provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof and such other information as the Company or the Rights Agent shall reasonably request.
7.7 Any funds that the Rights Agent receives in respect of payments for Preferred Shares resulting from the exercise of Rights shall be deposited in a non-interest bearing account at the Rights Agent that the Rights Agent designates solely for such purpose. Such funds shall remain in the Deposit Account until they are distributed to the Company in accordance with this Agreement.
Appears in 2 contracts
Sources: Shareholders’ Rights Agreement (Sohu.com LTD), Shareholders’ Rights Agreement (Sohu.com LTD)
Exercise of Rights; Exercise Price; Expiration Date of Rights. 7.1 (a) Subject to Section 7.5 7(e) hereof, the registered holder of any Right Certificate may exercise the Rights evidenced thereby (except as otherwise provided herein) in whole or in part at any time after the Distribution Date upon surrender of the Right Certificate, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, to the Rights Agent at the office or offices of the Rights Agent designated for such purpose, accompanied by a signature guarantee and such other documentation as the Rights Agent may reasonably request together with payment of the aggregate Exercise Price for the total number of one oneten-thousandths of a share of Preferred Stock (or other securities, cash or other assets, as the case may be) as to which such surrendered Rights are then exercised, at or prior to the earlier earliest of (ai) the Close of Business on the tenth anniversary of the date of this Agreement July 31, 2026 (the "“Final Expiration Date"”), (bii) the time at which the Rights are redeemed as provided in Section 23 hereof (the “Redemption Date”) or (ciii) the time at which such Rights are exchanged as provided in Section 24 hereof (the “Exchange Date”) (the earliest of (ai), (bii) or (ciii) being herein referred to as the "“Expiration Date"”). Except as set forth in Section 7.5 7(e) hereof and notwithstanding any other provision of this Agreement, any Person who prior to the Distribution Date becomes a record holder of shares of Common Stock of the Company may exercise all of the rights of a registered holder of a Right Certificate with respect to the Rights associated with such shares of Common Stock of the Company in accordance with the provisions of this Agreement, as of the date such Person becomes a record holder of shares of Common Stock of the Company.
7.2 (b) The Exercise Price for each one oneten-thousandth of a share of Preferred Stock pursuant to the exercise of a Right shall initially be one hundred dollars ($100)95.00, shall be subject to adjustment from time to time as provided in Section 11 and Section 13 hereof and shall be payable in lawful money of the United States of America in accordance with Section 7.3 7(c) below.
7.3 (c) As promptly as practicable following the Distribution Date, the Company shall deposit with a corporation, trust, bank or similar institution in good standing organized under the laws of the United States or any State of the United States, which is authorized under such laws to exercise corporate trust or stock transfer powers and is subject to supervision or examination by a federal or state authority (such institution is hereinafter referred to as the "“Depositary Agent"”), certificates representing the shares of Preferred Stock that may be acquired upon exercise of the Rights and the Company shall cause such Depositary Agent to enter into an agreement pursuant to which the Depositary Agent shall issue receipts representing interests in the shares of Preferred Stock so deposited. Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, accompanied by payment of the Exercise Price for the shares to be purchased and an amount equal to any applicable transfer tax (as determined by the Rights Agent) in cash, or by certified check or bank draft payable to the order of the CompanyCompany or by money order, the Rights Agent shall, subject to Section 20.11 20(k) and Section 14(b) hereof, thereupon promptly (ai) requisition from the Depositary Agent (or make available, if the Rights Agent is the Depository Depositary Agent) depository depositary receipts or certificates for the number of one oneten-thousandths of a share of Preferred Stock to be purchased and the Company hereby irrevocably authorizes shall direct the Depositary Agent to comply with all such requests, (bii) when appropriate, requisition from the Company the amount of cash, if any, to be paid in lieu of issuance of fractional shares in accordance with Section 14 hereof, (ciii) promptly after receipt of such certificates or depositary receipts, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (div) when appropriate, after receipt of each certificate or depositary receipts promptly deliver such cash to or upon the order of the registered holder of such Right Certificate. In the event that the Company is obligated to issue other securities (including Common StockStock of the Company) of the Company, pay cash or distribute other property pursuant to Section 11.1 11(a) hereof, the Company will make all arrangements necessary so that such other securities, cash or other property are available for distribution by the Rights Agent, if and when appropriate, and until so received, the Rights Agent shall have no duties or obligations with respect to such securities, cash or other property. The payment of the Exercise Price may be made in cash or by certified or bank check payable to the order of the Company, or by money order or wire transfer of immediately available funds to the account of the Company (provided that notice of such wire transfer shall be given by the holder of the related Right to the Rights Agent).
7.4 (d) In case the registered holder of any Right Certificate shall exercise less than all the Rights evidenced thereby, a new Right Certificate evidencing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent and delivered to the registered holder of such Right Certificate or to his duly authorized assigns, subject to the provisions of Section 14 hereof.
7.5 (e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11.1.2 11(a)(ii) Event or Section 13 Event, any Rights beneficially owned Beneficially Owned by (ai) an Acquiring Person or any Associate or Affiliate of an Acquiring Person, (bii) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring Person) who becomes a transferee after the Acquiring Person becomes such or (ciii) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring Person) who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and receives such Rights pursuant to either (iA) a transfer (whether or not for consideration) from the Acquiring Person to holders of equity interests in such Acquiring Person or to any Person with whom the Acquiring Person has any continuing agreement, arrangement or understanding (whether or not in writing) regarding the transferred Rights, the shares of Common Stock of the Company associated with such Rights or the Company, or (iiB) a transfer which the Board of Directors of the Company has determined is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 7.57(e), shall be null and void without any further action and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under any provision of this Agreement or otherwise. The Company shall notify the Rights Agent in writing when this Section 7(e) applies and shall use all reasonable efforts to ensure that the provisions of this Section 7.5 7(e) and Section 4.2 4(b) hereof are complied with, but neither the Company nor the Rights Agent shall have no any liability to any holder of Right Certificates or other Person (without limiting the rights of the Rights Agent under Section 18 hereof) as a result of its the Company’s failure to make any determinations with respect to an Acquiring Person or any Affiliates or Associates of an Acquiring Person or any transferee of any of them hereunder.
7.6 (f) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless such registered holder shall have (ai) properly completed and duly signed the certificate contained in the form of election to purchase set forth on the reverse side of the Right Certificate surrendered for such exercise exercise, and (bii) provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company or Rights Agent shall reasonably request.
Appears in 1 contract
Sources: Stockholder Rights Agreement (First Real Estate Investment Trust of New Jersey)
Exercise of Rights; Exercise Price; Expiration Date of Rights. 7.1 (a) Subject to Section 7.5 7(e) hereof, the registered holder of any Right Rights Certificate may exercise the Rights evidenced thereby (except as otherwise provided hereinherein including, without limitation, in the restrictions on exercisability set forth in Sections 9(c), 11(a)(iii) and 23(a) hereof) in whole or in part at any time after the Distribution Date upon surrender of the Right Rights Certificate, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, to the Rights Agent at the office or offices of the Rights Agent designated for such purpose, together with payment of the aggregate Exercise Price for the total number of each one one-thousandths thousandth of a share of Preferred Stock (or Common Stock, other securities, cash or other assets, as the case may be) as to which such surrendered the Rights are then exercised, at or exercised prior to the earlier earliest of (ai) the Close of Business on October 7, 2019 or such later date as may be established by the tenth anniversary Board prior to the expiration of the date Rights as long as the extension is submitted to the stockholders of this Agreement the Company for ratification at the next annual meeting of stockholders succeeding such extension (the "“Final Expiration Date"”), ; (bii) the time at which the Rights are redeemed as provided in pursuant to Section 23 hereof or (cthe “Redemption Date”); (iii) the time at which such the Rights are exchanged as provided in pursuant to Section 24 hereof (the “Exchange Date”); (iv) the closing of any merger or other acquisition transaction involving the Company pursuant to an agreement of the type described in Section 13(f) at which time the Rights are terminated; (v) the Close of Business on the first day after the Company’s 2016 annual meeting of stockholders, if Stockholder Approval has not been obtained at the Company’s 2016 annual meeting of stockholders (the “Early Expiration Date”); (vi) the Close of Business on the effective date of the repeal of Section 382 of the Code if the Board determines that this Agreement is no longer necessary or desirable for the preservation of Tax Benefits; and (vii) the Close of Business on the first day of a taxable year of the Company to which the Board determines that no Tax Benefits are available to be carried forward (the earliest of (a), i) – (b) or (cvii) being herein referred to as the "“Expiration Date"”). Except as set forth in Section 7.5 hereof and notwithstanding any other provision of this Agreement, any Person who prior .
(b) Each Right shall entitle the registered holder thereof to the Distribution Date becomes a record holder of shares of Common Stock of the Company may exercise all of the rights purchase one one-thousandth of a registered holder share of a Right Certificate with respect to the Rights associated with such shares of Common Stock of the Company in accordance with the provisions of this Agreement, as of the date such Person becomes a record holder of shares of Common Stock of the Company.
7.2 Preferred Stock. The Exercise Price for each one one-thousandth of a share of Preferred Stock pursuant to the exercise of a Right shall be initially be one hundred dollars ($100)5.00, and shall be subject to adjustment from time to time as provided in Section Sections 11 and Section 13 hereof and shall be payable in lawful money of the United States of America in accordance with paragraph (c) of this Section 7.3 below7.
7.3 As promptly as practicable following the Distribution Date, the Company shall deposit with a corporation, trust, bank or similar institution in good standing organized under the laws of the United States or any State of the United States, which is authorized under such laws to exercise corporate trust or stock transfer powers and is subject to supervision or examination by a federal or state authority (such institution is hereinafter referred to as the "Depositary Agent"), certificates representing the shares of Preferred Stock that may be acquired upon exercise of the Rights and the Company shall cause such Depositary Agent to enter into an agreement pursuant to which the Depositary Agent shall issue receipts representing interests in the shares of Preferred Stock so deposited. c) Upon receipt of a Right Rights Certificate representing exercisable Rights, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, accompanied by payment payment, with respect to each Right so exercised, of the Exercise Price for per one one-thousandth of a share of Preferred Stock (or Common Stock, other securities, cash or other assets, as the shares case may be) to be purchased and an amount equal to any applicable transfer tax (as determined by the Rights Agent) in cashor governmental charge, or by certified check or bank draft payable to the order of the Company, then the Rights Agent shall, subject to Section 20.11 18(j) hereof, thereupon promptly (ai) (A) requisition from any transfer agent of the Depositary Agent (or make available, if the Rights Agent is the Depository Agent) depository receipts or Preferred Stock certificates for the representing such number of one one-thousandths of a share of Preferred Stock (or fractions of shares that are integral multiples of one one-thousandth of a share of Preferred Stock) as are to be purchased and the Company hereby irrevocably authorizes the Depositary Agent shall direct its transfer agent to comply with all such requests; or (B) if the Company has elected to deposit the total number of shares of Preferred Stock issuable upon exercise of the Rights hereunder with a depositary agent, requisition from the depositary agent depositary receipts representing such number of one one-thousandths of a share of Preferred Stock as are to be purchased (bin which case certificates for the shares of Preferred Stock represented by such receipts shall be deposited by the transfer agent with the depositary agent), and the Company shall direct the depositary to comply with all such requests; (ii) when appropriateif necessary to comply with this Agreement, requisition from the Company the amount of cash, if any, to be paid in lieu of issuance of fractional shares in accordance with Section 14 hereof, ; (ciii) promptly after receipt of such certificates or such depositary receipts, cause the same to be delivered to or upon the order of the registered holder of such Right Rights Certificate, registered in such name or names as may be designated by such holder holder; and (div) when appropriateif necessary to comply with this Agreement, after receipt promptly thereof, deliver such cash cash, if any, to or upon the order of the registered holder of such Right Rights Certificate. In the event that the Company is obligated to issue Common Stock or other securities (including Common Stock) of the Company, pay cash or and/or distribute other property assets pursuant to Section 11.1 11(a) hereof, the Company will shall make all arrangements necessary so that such Common Stock, other securities, cash or and/or other property assets are available for distribution by the Rights Agent, if and when appropriatenecessary to comply with this Agreement, and until so received, the Rights Agent shall have no duties or obligations with respect to such securities, cash and/or other assets. The payment of the Exercise Price (as such amount may be reduced pursuant to Section 11(a)(iii) hereof) may be made in cash or by certified or bank check or money order payable to the order of the Company, or by wire transfer of immediately available funds to the account of the Company (provided that notice of such wire transfer shall be given by the holder of the related Right to the Rights Agent).
7.4 (d) In case the event a registered holder of any Right Rights Certificate shall exercise exercises less than all the Rights evidenced thereby, a new Right Rights Certificate evidencing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent and delivered to to, or upon the order of, such holder, registered holder of in such Right Certificate name or to his duly authorized assignsnames as designated by such holder, subject to the provisions of Section Sections 6 and 14 hereof.
7.5 (e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11.1.2 Event or Section 13 Flip-In Event, any Rights beneficially owned Beneficially Owned by (ai) an Acquiring Person or any Associate or Affiliate a Related Person of an Acquiring Person, ; (bii) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring such Related Person) who becomes a transferee after the Acquiring Person becomes such such; or (ciii) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring such Related Person) who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and who receives such Rights pursuant to either (iA) a transfer (whether or not for consideration) from the Acquiring Person (or any such Related Person) to holders of equity interests in such Acquiring Person (or any such Related Person) or to any Person with whom the Acquiring Person (or any such Related Person) has any continuing written or oral plan, agreement, arrangement or understanding regarding the transferred Rights, the shares of Common Stock of the Company associated with such Rights or the Company, ; or (iiB) a transfer which that the Board of Directors of the Company has determined is in good faith to be part of a plan, agreement, arrangement or understanding which that has as a primary purpose or effect the avoidance of this Section 7.57(e), shall be null and void without any further action action, and no any holder of such Rights thereafter shall have any no rights or preferences whatsoever with respect to such Rights, whether under any provision of this Agreement Agreement, the Rights Certificates or otherwiseotherwise (including, without limitation, rights and preferences pursuant to Sections 7, 11, 13, 23 and 24 hereof). The Company shall use all commercially reasonable efforts to ensure that compliance with the provisions of this Section 7.5 7(e) and Section 4.2 hereof are complied with4(b) hereof, but shall neither the Company nor the Rights Agent have no any liability to any holder of Right Certificates Rights or any other Person as a result of its the Company’s failure to make any determinations determination with respect to an Acquiring Person or any Affiliates its Related Persons or Associates of an Acquiring Person or any transferee of any of them transferees hereunder.
7.6 (f) Notwithstanding anything in this Agreement or any Rights Certificate to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake take any action with respect to a registered holder of Rights upon the occurrence of any purported transfer or exercise as set forth in this Section 7 by such registered holder unless such registered holder shall have has (ai) properly completed and signed duly executed the certificate contained in following the form of election to purchase set forth on the reverse side of the Right Rights Certificate surrendered for such exercise exercise, and (bii) provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) of the Rights represented by such Rights Certificate or Affiliates or Associates Related Persons thereof as the Company or the Rights Agent reasonably requests.
(g) Except for those provisions herein that expressly survive the termination of this Agreement, this Agreement shall reasonably requestterminate upon the earlier of the Expiration Date and such time as all outstanding Rights have been exercised, redeemed or exchanged hereunder.
Appears in 1 contract
Exercise of Rights; Exercise Price; Expiration Date of Rights. 7.1 Subject (a) At any time after the Exercisability Date and prior to the earlier of (i) the Close of Business on March 4, 2007 (the “Final Expiration Date”), (ii) the time at which the Rights are redeemed as provided in Section 7.5 hereof23 (the “Redemption Date”), (iii) the time at which the Rights are exchanged as provided in Section 24, and (iv) the Effective Time (as defined in the Merger Agreement) (the earlier of (i), (ii), (iii) and (iv) being the “Expiration Date”), the registered holder of any Right Rights Certificate may may, subject to the provisions of Section 7(e), exercise the Rights evidenced thereby (except as otherwise provided herein) in whole or in part at any time after the Distribution Date upon surrender of the Right Rights Certificate, with the form of election to purchase and the certificate on the reverse side thereof duly executed, to the Rights Agent at the office or offices of the Rights Agent designated for such purpose, together with payment of the aggregate Exercise Price for the total number of one one-thousandths shares of a share of Preferred Common Stock (or or, following a Triggering Event, other securities, cash or other assets, as the case may be) as to for which such surrendered Rights are then exercised, at or prior exercisable.” A corresponding change to the earlier of (a) the Close of Business on the tenth anniversary definition of the date of this Agreement (the "Final term “Expiration Date"), (b) ” shall be deemed to be made in the time at which last sentence of paragraph 2 of the Summary of Rights are redeemed Agreement attached as provided in Section 23 hereof or Exhibit B to the Agreement.
(c) Notwithstanding anything to the time at which such Rights are exchanged as provided contrary in Section 24 hereof (the earliest of (a), (b) or (c) being herein referred to as the "Expiration Date"). Except as set forth in Section 7.5 hereof and notwithstanding any other provision of this Agreement, any Person who prior to the Distribution Date becomes a record holder of shares of Common Stock of the Company may exercise all of the rights of a registered holder of a Right Certificate with respect to the Rights associated with such shares of Common Stock of the Company in accordance with the provisions of this Agreement, as of the date such Person becomes a record holder of shares of Common Stock of the Company.
7.2 The Exercise Price for each one one-thousandth of a share of Preferred Stock pursuant to the exercise of a Right shall initially be one hundred dollars ($100), shall be subject to adjustment from time to time as provided in Section 11 and Section 13 hereof and shall be payable in lawful money of the United States of America in accordance with Section 7.3 below.
7.3 As promptly as practicable following the Distribution Date, the Company shall deposit with a corporation, trust, bank or similar institution in good standing organized under the laws of the United States or any State of the United States, which is authorized under such laws to exercise corporate trust or stock transfer powers and is subject to supervision or examination by a federal or state authority (such institution is hereinafter referred to as the "Depositary Agent"), certificates representing the shares of Preferred Stock that may be acquired upon exercise of the Rights and the Company shall cause such Depositary Agent to enter into an agreement pursuant to which the Depositary Agent shall issue receipts representing interests in the shares of Preferred Stock so deposited. Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase and the certificate on the reverse side thereof duly executed, accompanied by payment of the Exercise Price for the shares to be purchased and an amount equal to any applicable transfer tax (as determined by the Rights Agent) in cash, or by certified check or bank draft payable to the order of the Company, the Rights Agent shall, subject to Section 20.11 hereof, thereupon promptly (a) requisition from the Depositary Agent (or make available, if the Rights Agent is the Depository Agent) depository receipts or certificates for the number of one one-thousandths of a share of Preferred Stock to be purchased and the Company hereby irrevocably authorizes the Depositary Agent to comply with all such requests, (b) when appropriate, requisition from the Company the amount of cash, if any, to be paid in lieu of issuance of fractional shares in accordance with Section 14 hereof, (c) promptly after receipt of such certificates or depositary receipts, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (d) when appropriate, after receipt promptly deliver such cash to or upon the order of the registered holder of such Right Certificate. In the event that the Company is obligated to issue other securities (including Common Stock) of the Company, pay cash or distribute other property pursuant to Section 11.1 hereof, the Company will make all arrangements necessary so that such other securities, cash or other property are available for distribution by the Rights Agent, if and when appropriate. The payment of the Exercise Price may be made in cash or by certified or bank check payable to the order of the Company, or by wire transfer of immediately available funds to the account of the Company (provided that notice of such wire transfer shall be given by the holder of the related Right to the Rights Agent).
7.4 In case the registered holder of any Right Certificate shall exercise less than all the Rights evidenced thereby, a new Right Certificate evidencing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent and delivered to the registered holder of such Right Certificate or to his duly authorized assigns, subject to the provisions of Section 14 hereof.
7.5 Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11.1.2 Event or Section 13 Event, any Rights beneficially owned by (a) an Acquiring Person or any Associate or Affiliate of an Acquiring Person, (b) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring Person) who becomes a transferee after the Acquiring Person becomes such or (c) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring Person) who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and receives such Rights pursuant to either (i) a transfer (whether or not for consideration) from the Acquiring Person to holders of equity interests in such Acquiring Person or to any Person with whom the Acquiring Person has any continuing agreement, arrangement or understanding regarding the transferred Rights, the shares of Common Stock of the Company associated with such Rights or the Company, or (ii) a transfer which the Board of Directors of the Company has determined is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 7.5, shall be null and void without any further action and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under any provision of this Agreement or otherwise. The Company shall use all reasonable efforts be deemed not to ensure that apply to the provisions of this Section 7.5 and Section 4.2 hereof are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person Merger or any Affiliates or Associates of an Acquiring Person or any transferee of any of them hereunderother transactions contemplated by the Merger Agreement.
7.6 Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless such registered holder shall have (a) completed and signed the certificate contained in the form of election to purchase set forth on the reverse side of the Right Certificate surrendered for such exercise and (b) provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company shall reasonably request.
Appears in 1 contract
Exercise of Rights; Exercise Price; Expiration Date of Rights. 7.1 (a) Subject to Section 7.5 7(e) hereof, the registered holder of any Right Rights Certificate may exercise the Rights evidenced thereby (except as otherwise provided hereinherein including, without limitation, in the restrictions on exercisability set forth in Sections 9(c), 11(a)(iii) and 23(a) hereof) in whole or in part at any time after the Distribution Date upon surrender of the Right Rights Certificate, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, to the Rights Agent at the office or offices of the Rights Agent designated for such purpose, together with payment of the aggregate Exercise Price for the total number of each one one-thousandths thousandth of a share of Preferred Stock (or Common Stock, other securities, cash or other assets, as the case may be) as to which such surrendered the Rights are then exercised, at or exercised prior to the earlier earliest of (ai) the Close of Business on May 6, 2019 or such later date as may be established by the tenth anniversary Board prior to the expiration of the date Rights as long as the extension is submitted to the stockholders of this Agreement the Company for ratification at the next annual meeting of stockholders succeeding such extension (the "“Final Expiration Date"”), ; (bii) the time at which the Rights are redeemed as provided in pursuant to Section 23 hereof or (cthe “Redemption Date”); (iii) the time at which such the Rights are exchanged as provided in pursuant to Section 24 hereof (the “Exchange Date”); (iv) the closing of any merger or other acquisition transaction involving the Company pursuant to an agreement of the type described in Section 13(f) at which time the Rights are terminated; (v) the Close of Business on the first day after the Company’s 2017 annual meeting of stockholders, if Stockholder Approval has not been obtained on or prior to the Close of Business on the Close of Business on the first day after the Company’s 2017 annual meeting of stockholders (the “Early Expiration Date”); (vi) the Close of Business on the effective date of the repeal of Section 382 of the Code if the Board determines that this Agreement is no longer necessary or desirable for the preservation of Tax Benefits; and (vii) the Close of Business on the first day of a taxable year of the Company to which the Board determines that no Tax Benefits are available to be carried forward (the earliest of (a), i) — (b) or (cvii) being herein referred to as the "“Expiration Date"”). Except as set forth in Section 7.5 hereof and notwithstanding any other provision of this Agreement, any Person who prior .
(b) Each Right shall entitle the registered holder thereof to the Distribution Date becomes a record holder of shares of Common Stock of the Company may exercise all of the rights purchase one one-thousandth of a registered holder share of a Right Certificate with respect to the Rights associated with such shares of Common Stock of the Company in accordance with the provisions of this Agreement, as of the date such Person becomes a record holder of shares of Common Stock of the Company.
7.2 Preferred Stock. The Exercise Price for each one one-thousandth of a share of Preferred Stock pursuant to the exercise of a Right shall be initially be one hundred dollars ($100)8.76, and shall be subject to adjustment from time to time as provided in Section Sections 11 and Section 13 hereof and shall be payable in lawful money of the United States of America in accordance with paragraph (c) of this Section 7.3 below7.
7.3 As promptly as practicable following the Distribution Date, the Company shall deposit with a corporation, trust, bank or similar institution in good standing organized under the laws of the United States or any State of the United States, which is authorized under such laws to exercise corporate trust or stock transfer powers and is subject to supervision or examination by a federal or state authority (such institution is hereinafter referred to as the "Depositary Agent"), certificates representing the shares of Preferred Stock that may be acquired upon exercise of the Rights and the Company shall cause such Depositary Agent to enter into an agreement pursuant to which the Depositary Agent shall issue receipts representing interests in the shares of Preferred Stock so deposited. c) Upon receipt of a Right Rights Certificate representing exercisable Rights, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, accompanied by payment payment, with respect to each Right so exercised, of the Exercise Price for per one one-thousandth of a share of Preferred Stock (or Common Stock, other securities, cash or other assets, as the shares case may be) to be purchased and an amount equal to any applicable transfer tax (as determined by the Rights Agent) in cashor governmental charge, or by certified check or bank draft payable to the order of the Company, then the Rights Agent shall, subject to Section 20.11 18(j) hereof, thereupon promptly (ai) (A) requisition from any transfer agent of the Depositary Agent (or make available, if the Rights Agent is the Depository Agent) depository receipts or Preferred Stock certificates for the representing such number of one one-thousandths of a share of Preferred Stock (or fractions of shares that are integral multiples of one one-thousandth of a share of Preferred Stock) as are to be purchased and the Company hereby irrevocably authorizes the Depositary Agent shall direct its transfer agent to comply with all such requests; or (B) if the Company has elected to deposit the total number of shares of Preferred Stock issuable upon exercise of the Rights hereunder with a depositary agent, requisition from the depositary agent depositary receipts representing such number of one one-thousandths of a share of Preferred Stock as are to be purchased (bin which case certificates for the shares of Preferred Stock represented by such receipts shall be deposited by the transfer agent with the depositary agent), and the Company shall direct the depositary to comply with all such requests; (ii) when appropriateif necessary to comply with this Agreement, requisition from the Company the amount of cash, if any, to be paid in lieu of issuance of fractional shares in accordance with Section 14 hereof, ; (ciii) promptly after receipt of such certificates or such depositary receipts, cause the same to be delivered to or upon the order of the registered holder of such Right Rights Certificate, registered in such name or names as may be designated by such holder holder; and (div) when appropriateif necessary to comply with this Agreement, after receipt promptly thereof, deliver such cash cash, if any, to or upon the order of the registered holder of such Right Rights Certificate. In the event that the Company is obligated to issue Common Stock or other securities (including Common Stock) of the Company, pay cash or and/or distribute other property assets pursuant to Section 11.1 11(a) hereof, the Company will shall make all arrangements necessary so that such Common Stock, other securities, cash or and/or other property assets are available for distribution by the Rights Agent, if and when appropriatenecessary to comply with this Agreement, and until so received, the Rights Agent shall have no duties or obligations with respect to such securities, cash and/or other assets. The payment of the Exercise Price (as such amount may be reduced pursuant to Section 11(a)(iii) hereof) may be made in cash or by certified or bank check or money order payable to the order of the Company, or by wire transfer of immediately available funds to the account of the Company (provided that notice of such wire transfer shall be given by the holder of the related Right to the Rights Agent).
7.4 (d) In case the event a registered holder of any Right Rights Certificate shall exercise exercises less than all the Rights evidenced thereby, a new Right Rights Certificate evidencing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent and delivered to to, or upon the order of, such holder, registered holder of in such Right Certificate name or to his duly authorized assignsnames as designated by such holder, subject to the provisions of Section Sections 6 and 14 hereof.
7.5 (e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11.1.2 Event or Section 13 Flip-In Event, any Rights beneficially owned Beneficially Owned by (ai) an Acquiring Person or any Associate or Affiliate a Related Person of an Acquiring Person, ; (bii) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring such Related Person) who becomes a transferee after the Acquiring Person becomes such such; or (ciii) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring such Related Person) who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and who receives such Rights pursuant to either (iA) a transfer (whether or not for consideration) from the Acquiring Person (or any such Related Person) to holders of equity interests in such Acquiring Person (or any such Related Person) or to any Person with whom the Acquiring Person (or any such Related Person) has any continuing written or oral plan, agreement, arrangement or understanding regarding the transferred Rights, the shares of Common Stock of the Company associated with such Rights or the Company, ; or (iiB) a transfer which that the Board of Directors of the Company has determined is in good faith to be part of a plan, agreement, arrangement or understanding which that has as a primary purpose or effect the avoidance of this Section 7.57(e), shall be null and void without any further action action, and no any holder of such Rights thereafter shall have any no rights or preferences whatsoever with respect to such Rights, whether under any provision of this Agreement Agreement, the Rights Certificates or otherwiseotherwise (including, without limitation, rights and preferences pursuant to Sections 7, 11, 13, 23 and 24 hereof). The Company shall use all commercially reasonable efforts to ensure that compliance with the provisions of this Section 7.5 7(e) and Section 4.2 hereof are complied with4(b) hereof, but shall neither the Company nor the Rights Agent have no any liability to any holder of Right Certificates Rights or any other Person as a result of its the Company’s failure to make any determinations determination with respect to an Acquiring Person or any Affiliates its Related Persons or Associates of an Acquiring Person or any transferee of any of them transferees hereunder.
7.6 (f) Notwithstanding anything in this Agreement or any Rights Certificate to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake take any action with respect to a registered holder of Rights upon the occurrence of any purported transfer or exercise as set forth in this Section 7 by such registered holder unless such registered holder shall have has (ai) properly completed and signed duly executed the certificate contained in following the form of election to purchase set forth on the reverse side of the Right Rights Certificate surrendered for such exercise exercise, and (bii) provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) of the Rights represented by such Rights Certificate or Affiliates or Associates Related Persons thereof as the Company or the Rights Agent reasonably requests.
(g) Except for those provisions herein that expressly survive the termination of this Agreement, this Agreement shall reasonably requestterminate upon the earlier of the Expiration Date and such time as all outstanding Rights have been exercised, redeemed or exchanged hereunder.
Appears in 1 contract
Exercise of Rights; Exercise Price; Expiration Date of Rights. 7.1 (a) Subject to Section 7.5 7(e) hereof, the registered holder of any Right Rights Certificate may exercise the Rights evidenced thereby (except as otherwise provided hereinherein including, without limitation, in the restrictions on exercisability set forth in Sections 9(c), 11(a)(iii) and 23(a) hereof) in whole or in part at any time after the Distribution Date upon surrender of the Right Rights Certificate, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, to the Rights Agent at the office or offices of the Rights Agent designated for such purpose, together with payment of the aggregate Exercise Price for the total number of each one one-thousandths thousandth of a share of Preferred Stock (or Common Stock, other securities, cash or other assets, as the case may be) as to which such surrendered the Rights are then exercised, at or exercised prior to the earlier earliest of (ai) the Close of Business on March 31, 2021 or such later date as may be established by the tenth anniversary Board prior to the expiration of the date Rights as long as the extension is submitted to the stockholders of this Agreement the Company for ratification at the next annual meeting of stockholders succeeding such extension (the "“Final Expiration Date"”), ; (bii) the time at which the Rights are redeemed as provided in pursuant to Section 23 hereof or hereof; (ciii) the time at which such the Rights are exchanged as provided pursuant to Section 24 hereof; and (iv) the closing of any merger or other acquisition transaction involving the Company pursuant to an agreement of the type described in Section 24 hereof 13(f) at which time the Rights are terminated (the earliest of (a), i) – (b) or (civ) being herein referred to as the "“Expiration Date"”). Except as set forth in Section 7.5 hereof and notwithstanding any other provision of this Agreement, any Person who prior .
(b) Each Right shall entitle the registered holder thereof to the Distribution Date becomes a record holder of shares of Common Stock of the Company may exercise all of the rights purchase one one-thousandth of a registered holder share of a Right Certificate with respect to the Rights associated with such shares of Common Stock of the Company in accordance with the provisions of this Agreement, as of the date such Person becomes a record holder of shares of Common Stock of the Company.
7.2 Preferred Stock. The Exercise Price for each one one-thousandth of a share of Preferred Stock pursuant to the exercise of a Right shall be initially be one hundred dollars ($100)16.00, and shall be subject to adjustment from time to time as provided in Section Sections 11 and Section 13 hereof and shall be payable in lawful money of the United States of America in accordance with Section 7.3 below7(c).
7.3 As promptly as practicable following the Distribution Date, the Company shall deposit with a corporation, trust, bank or similar institution in good standing organized under the laws of the United States or any State of the United States, which is authorized under such laws to exercise corporate trust or stock transfer powers and is subject to supervision or examination by a federal or state authority (such institution is hereinafter referred to as the "Depositary Agent"), certificates representing the shares of Preferred Stock that may be acquired upon exercise of the Rights and the Company shall cause such Depositary Agent to enter into an agreement pursuant to which the Depositary Agent shall issue receipts representing interests in the shares of Preferred Stock so deposited. c) Upon receipt of a Right Rights Certificate representing exercisable Rights, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, accompanied by payment payment, with respect to each Right so exercised, of the Exercise Price for per one one-thousandth of a share of Preferred Stock (or Common Stock, other securities, cash or other assets, as the shares case may be) to be purchased and an amount equal to any applicable transfer tax (as determined by the Rights Agent) in cashor governmental charge, or by certified check or bank draft payable to the order of the Company, then the Rights Agent shall, subject to Section 20.11 18(j) hereof, thereupon promptly (ai) (A) requisition from any transfer agent of the Depositary Agent (or make available, if the Rights Agent is the Depository Agent) depository receipts or Preferred Stock certificates for the representing such number of one one-thousandths of a share of Preferred Stock (or fractions of shares that are integral multiples of one one-thousandth of a share of Preferred Stock) as are to be purchased and the Company hereby irrevocably authorizes the Depositary Agent shall direct its transfer agent to comply with all such requests; or (B) if the Company has elected to deposit the total number of shares of Preferred Stock issuable upon exercise of the Rights hereunder with a depositary agent, requisition from the depositary agent depositary receipts representing such number of one one-thousandths of a share of Preferred Stock as are to be purchased (bin which case certificates for the shares of Preferred Stock represented by such receipts shall be deposited by the transfer agent with the depositary agent), and the Company shall direct the depositary to comply with all such requests; (ii) when appropriateif necessary to comply with this Agreement, requisition from the Company the amount of cash, if any, to be paid in lieu of issuance of fractional shares in accordance with Section 14 hereofhereof and, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Rights Certificate; and (ciii) promptly after receipt of such certificates or such depositary receipts, cause the same to be delivered to or upon the order of the registered holder of such Right Rights Certificate, registered in such name or names as may be designated by such holder and (d) when appropriate, after receipt promptly deliver such cash to or upon the order of the registered holder of such Right Certificateholder. In the event that the Company is obligated to issue Common Stock or other securities (including Common Stock) of the Company, pay cash or and/or distribute other property assets pursuant to Section 11.1 11(a) hereof, the Company will shall make all arrangements necessary so that such Common Stock, other securities, cash or and/or other property assets are available for distribution by the Rights Agent, if and when appropriatenecessary to comply with this Agreement, and until so received, the Rights Agent shall have no duties or obligations with respect to such securities, cash and/or other assets. The payment of the Exercise Price (as such amount may be reduced pursuant to Section 11(a)(iii) hereof) may be made in cash or cash, by certified or bank check check, wire transfer, electronic transfer or money order payable to the order of the Company, or by wire transfer of immediately available funds to the account of the Company (provided that notice of such wire transfer shall be given by the holder of the related Right to the Rights Agent).
7.4 (d) In case the event a registered holder of any Right Rights Certificate shall exercise exercises less than all the Rights evidenced thereby, a new Right Rights Certificate evidencing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent and delivered to to, or upon the order of, such holder, registered holder of in such Right Certificate name or to his duly authorized assignsnames as designated by such holder, subject to the provisions of Section Sections 6 and 14 hereof.
7.5 (e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11.1.2 Event or Section 13 Flip-In Event, any Rights beneficially owned Beneficially Owned by (ai) an Acquiring Person or any Associate or Affiliate a Related Person of an Acquiring Person, ; (bii) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring such Related Person) who that becomes a transferee after the Acquiring Person becomes such or such; and (ciii) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring such Related Person) who that becomes a transferee prior to or concurrently with the Acquiring Person becoming such and that receives such Rights pursuant to either (iA) a transfer (whether or not for consideration) from the Acquiring Person (or any such Related Person) to holders of equity interests in such Acquiring Person (or any such Related Person) or to any Person with whom the Acquiring Person (or any such Related Person) has any continuing written or oral plan, agreement, arrangement or understanding regarding the transferred Rights, the shares of Common Stock of the Company associated with such Rights or the Company, ; or (iiB) a transfer which that the Board of Directors of the Company has determined is in good faith to be part of a plan, agreement, arrangement or understanding which that has as a primary purpose or effect the avoidance of this Section 7.57(e), shall be null and void without any further action action, and no any holder of such Rights thereafter shall have no voting rights, powers, designations, preferences or any other relative, participating, optional or other special rights whatsoever with respect to such Rights, whether under any provision of this Agreement Agreement, the Rights Certificates or otherwiseotherwise (including, without limitation, the rights and preferences pursuant to Sections 7, 11, 13, 23 and 24 hereof). The Company shall use all commercially reasonable efforts to ensure that compliance with the provisions of this Section 7.5 7(e) and Section 4.2 hereof are complied with4(b) hereof, but neither the Company nor the Rights Agent has or shall have no any liability to any holder of Right Certificates Rights or any other Person as a result of its the Company’s failure to make any determinations determination with respect to an Acquiring Person or any Affiliates its Related Persons or Associates of an Acquiring Person or any transferee of any of them transferees hereunder.
7.6 (f) Notwithstanding anything in this Agreement or any Rights Certificate to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake take any action with respect to a registered holder of Rights upon the occurrence of any purported transfer or exercise as set forth in this Section 7 by such registered holder unless such registered holder shall have has (ai) properly completed and signed duly executed the certificate contained in following the form of assignment or the form of election to purchase set forth on the reverse side of the Right Rights Certificate surrendered for such exercise transfer or exercise, and (bii) provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) of the Rights represented by such Rights Certificate or Affiliates or Associates Related Persons thereof as the Company or the Rights Agent reasonably requests.
(g) Except for those provisions herein that expressly survive the termination of this Agreement, this Agreement shall reasonably requestterminate upon the earlier of the Expiration Date and such time as all outstanding Rights have been exercised, redeemed or exchanged hereunder.
Appears in 1 contract
Exercise of Rights; Exercise Price; Expiration Date of Rights. 7.1 (a) Subject to Section 7.5 7(e) hereof, the registered holder of any Right Rights Certificate may exercise the Rights evidenced thereby (except as otherwise provided hereinherein including in the restrictions on exercisability set forth in Sections 9(c), 11(a)(iii) and 23(a) hereof) in whole or in part at any time after the Distribution Date upon surrender of the Right Rights Certificate, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, to the Rights Agent at the office or offices of the Rights Agent designated for such purpose, together with payment of the aggregate Exercise Price for the total number of each one one-thousandths thousandth of a share of Preferred Stock (or Common Stock, other securities, cash or other assets, as the case may be) as to which such surrendered the Rights are then exercised, at or prior to the earlier earliest of (ai) the Close of Business on the tenth anniversary of the date of this Agreement September 18, 2020 (the "“Final Expiration Date"”), ; (bii) the time at which the Rights are redeemed as provided in pursuant to Section 23 hereof or (cthe “Redemption Date”); (iii) the time at which such the Rights are exchanged as provided in pursuant to Section 24 hereof (the “Exchange Date”); (iv) the closing of any merger or other acquisition transaction involving the Company pursuant to an agreement of the type described in Section 13(f) at which time the Rights are terminated; (v) the close of business on the first day that the Board of Directors of the Company determines that this agreement is no longer necessary or desirable for the preservation of the Company’s NOLs, (vi) immediately following the final adjournment of the first annual meeting of the shareholders of the Company following the date hereof if shareholder approval of this Agreement has not been received prior to such time (the earliest of (ai), (bii), (iii), (iv), (v) or and (cvi) being herein referred to as the "“Expiration Date"”). Except as set forth in Section 7.5 hereof and notwithstanding any other provision of this Agreement, any Person who prior .
(b) Each Right shall entitle the registered holder thereof to the Distribution Date becomes a record holder of shares of Common Stock of the Company may exercise all of the rights purchase one one-thousandth of a registered holder share of a Right Certificate with respect to the Rights associated with such shares of Common Stock of the Company in accordance with the provisions of this Agreement, as of the date such Person becomes a record holder of shares of Common Stock of the Company.
7.2 Preferred Stock. The Exercise Price for each one one-thousandth of a share of Preferred Stock pursuant to the exercise of a Right shall be initially be one hundred dollars ($100)35.00, and shall be subject to adjustment from time to time as provided in Section Sections 11 and Section 13 hereof and shall be payable in lawful money of the United States of America in accordance with paragraph (c) of this Section 7.3 below7.
7.3 As promptly as practicable following the Distribution Date, the Company shall deposit with a corporation, trust, bank or similar institution in good standing organized under the laws of the United States or any State of the United States, which is authorized under such laws to exercise corporate trust or stock transfer powers and is subject to supervision or examination by a federal or state authority (such institution is hereinafter referred to as the "Depositary Agent"), certificates representing the shares of Preferred Stock that may be acquired upon exercise of the Rights and the Company shall cause such Depositary Agent to enter into an agreement pursuant to which the Depositary Agent shall issue receipts representing interests in the shares of Preferred Stock so deposited. c) Upon receipt of a Right Rights Certificate representing exercisable Rights, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, accompanied by payment payment, with respect to each Right so exercised, of the Exercise Price for per one one-thousandth of a share of Preferred Stock (or Common Stock, other securities, cash or other assets, as the shares case may be) to be purchased and an amount equal to any applicable transfer tax (as determined by the Rights Agent) in cashor charge, or by certified check or bank draft payable to the order of the Company, then the Rights Agent shall, subject to Section 20.11 18(j) hereof, thereupon promptly (ai) (A) requisition from any transfer agent of the Depositary Agent (or make available, if the Rights Agent is the Depository Agent) depository receipts or Preferred Stock certificates for the representing such number of one one-thousandths of a share of Preferred Stock (or fractions of shares that are integral multiples of one one-thousandth of a share of Preferred Stock) as are to be purchased and the Company hereby irrevocably authorizes the Depositary Agent shall direct its transfer agent to comply with all such requests; or (B) if the Company has elected to deposit the total number of shares of Preferred Stock issuable upon exercise of the Rights hereunder with a depositary agent, requisition from the depositary agent depositary receipts representing such number of one one-thousandths of a share of Preferred Stock as are to be purchased (bin which case certificates for the shares of Preferred Stock represented by such receipts shall be deposited by the transfer agent with the depositary agent), and the Company shall direct the depositary to comply with all such requests; (ii) when appropriateif necessary to comply with this Agreement, requisition from the Company the amount of cash, if any, to be paid in lieu of issuance of fractional shares in accordance with Section 14 hereof, ; (ciii) promptly after receipt of such certificates or such depositary receipts, cause the same to be delivered to or upon the order of the registered holder of such Right Rights Certificate, registered in such name or names as may be designated by such holder holder; and (div) when appropriateif necessary to comply with this Agreement, after receipt promptly thereof, deliver such cash cash, if any, to or upon the order of the registered holder of such Right Rights Certificate. In the event that the Company is obligated to issue Common Stock or other securities (including Common Stock) of the Company, pay cash or and/or distribute other property assets pursuant to Section 11.1 11(a) hereof, the Company will shall make all arrangements necessary so that such Common Stock, other securities, cash or and/or other property assets are available for distribution by the Rights Agent, if and when appropriatenecessary to comply with this Agreement, and until so received, the Rights Agent shall have no duties or obligations with respect to such securities, cash and/or other assets. The payment of the Exercise Price (as such amount may be reduced pursuant to Section 11(a)(iii) hereof) may be made in cash or by certified or bank check or money order payable to the order of the Company, or by wire transfer of immediately available funds to the account of the Company (provided that notice of such wire transfer shall be given by the holder of the related Right to the Rights Agent).
7.4 (d) In case the event a registered holder of any Right Rights Certificate shall exercise exercises less than all the Rights evidenced thereby, a new Right Rights Certificate evidencing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent and delivered to to, or upon the order of, such holder, registered holder of in such Right Certificate name or to his duly authorized assignsnames as designated by such holder, subject to the provisions of Section Sections 6 and 14 hereof.
7.5 (e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11.1.2 Event or Section 13 Flip-In Event, any Rights beneficially owned Beneficially Owned by (ai) an Acquiring Person or any Associate or Affiliate a Related Person of an Acquiring Person, ; (bii) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring such Related Person) who becomes a transferee after the Acquiring Person becomes such such; or (ciii) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring such Related Person) who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and who receives such Rights pursuant to either (iA) a transfer (whether or not for consideration) from the Acquiring Person (or any such Related Person) to holders of equity interests in such Acquiring Person (or any such Related Person) or to any Person with whom the Acquiring Person (or any such Related Person) has any continuing written or oral plan, agreement, arrangement or understanding regarding the transferred Rights, the shares of Common Stock of the Company associated with such Rights or the Company, ; or (iiB) a transfer which that the Board of Directors of the Company has determined is in good faith to be part of a plan, agreement, arrangement or understanding which that has as a primary purpose or effect the avoidance of this Section 7.57(e), shall be null and void without any further action action, and no any holder of such Rights thereafter shall have any no rights or preferences whatsoever with respect to such Rights, whether under any provision of this Agreement Agreement, the Rights Certificates or otherwiseotherwise (including rights and preferences pursuant to Sections 7, 11, 13, 23 and 24 hereof). The Company shall use all commercially reasonable efforts to ensure that compliance with the provisions of this Section 7.5 7(e) and Section 4.2 hereof are complied with4(b) hereof, but shall neither the Company nor the Rights Agent have no any liability to any holder of Right Certificates Rights or any other Person as a result of its the Company’s failure to make any determinations determination with respect to an Acquiring Person or any Affiliates its Related Persons or Associates of an Acquiring Person or any transferee of any of them transferees hereunder.
7.6 (f) Notwithstanding anything in this Agreement or any Rights Certificate to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake take any action with respect to a registered holder of Rights upon the occurrence of any purported transfer or exercise as set forth in this Section 7 by such registered holder unless such registered holder shall have has (ai) properly completed and signed duly executed the certificate contained in following the form of election to purchase set forth on the reverse side of the Right Rights Certificate surrendered for such exercise exercise, and (bii) provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) of the Rights represented by such Rights Certificate or Affiliates or Associates Related Persons thereof as the Company shall reasonably requestrequests.
Appears in 1 contract
Sources: Rights Agreement (Freds Inc)
Exercise of Rights; Exercise Price; Expiration Date of Rights. 7.1 (a) Subject to Section 7.5 7(e) hereof, the registered holder of any Right Rights Certificate may exercise the Rights evidenced thereby (except as otherwise provided hereinherein including, without limitation, in the restrictions on exercisability set forth in Sections 9(c), 11(a)(iii) and 23(a) hereof) in whole or in part at any time after the Distribution Date upon surrender of the Right Rights Certificate, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, to the Rights Agent at the office or offices of the Rights Agent designated for such purpose, together with payment of the aggregate Exercise Price for the total number of each one one-thousandths thousandth of a share of Preferred Stock (or Common Stock, other securities, cash or other assets, as the case may be) as to which such surrendered the Rights are then exercised, at or exercised prior to the earlier earliest of (ai) the Close of Business on October 11, 2024, unless this Agreement is renewed up to two additional twelve (12) month periods through October 11, 2026, as may be approved by the tenth anniversary Board prior to the expiration of the Rights as long as each such twelve (12) month renewal period is submitted to the stockholders of the Company for their approval and is thereby approved, and, if not approved, with respect to any such twelve (12) month renewal period, then the last date of for which this Agreement is in effect (the "“Final Expiration Date"”), ; (bii) the time at which the Rights are redeemed as provided in pursuant to Section 23 hereof or (cthe “Redemption Date”); (iii) the time at which such the Rights are exchanged as provided in pursuant to Section 24 hereof (the earliest “Exchange Date”); (iv) the closing of any merger or other acquisition transaction involving the Company pursuant to an agreement of the type described in Section 13(f) at which time the Rights are terminated; (a), (b) or (c) being herein referred to as the "“Early Expiration Date"”). Except as set forth in Section 7.5 hereof and notwithstanding any other provision ; (vi) the Close of this Agreement, any Person who prior to Business on the Distribution Date becomes a record holder of shares of Common Stock effective date of the Company may exercise all repeal of Section 382 of the rights of a registered holder of a Right Certificate with respect to Code if the Rights associated with such shares of Common Stock of the Company in accordance with the provisions of Board determines that this Agreement, as of the date such Person becomes a record holder of shares of Common Stock of the Company.
7.2 The Exercise Price for each one one-thousandth of a share of Preferred Stock pursuant to the exercise of a Right shall initially be one hundred dollars ($100), shall be subject to adjustment from time to time as provided in Section 11 and Section 13 hereof and shall be payable in lawful money of the United States of America in accordance with Section 7.3 below.
7.3 As promptly as practicable following the Distribution Date, the Company shall deposit with a corporation, trust, bank Agreement is no longer necessary or similar institution in good standing organized under the laws of the United States or any State of the United States, which is authorized under such laws to exercise corporate trust or stock transfer powers and is subject to supervision or examination by a federal or state authority (such institution is hereinafter referred to as the "Depositary Agent"), certificates representing the shares of Preferred Stock that may be acquired upon exercise of the Rights and the Company shall cause such Depositary Agent to enter into an agreement pursuant to which the Depositary Agent shall issue receipts representing interests in the shares of Preferred Stock so deposited. Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase and the certificate on the reverse side thereof duly executed, accompanied by payment of the Exercise Price desirable for the shares to be purchased and an amount equal to any applicable transfer tax (as determined by the Rights Agent) in cash, or by certified check or bank draft payable to the order preservation of the Company, the Rights Agent shall, subject to Section 20.11 hereof, thereupon promptly (a) requisition from the Depositary Agent (or make available, if the Rights Agent is the Depository Agent) depository receipts or certificates for the number of one one-thousandths of a share of Preferred Stock to be purchased and the Company hereby irrevocably authorizes the Depositary Agent to comply with all such requests, (b) when appropriate, requisition from the Company the amount of cash, if any, to be paid in lieu of issuance of fractional shares in accordance with Section 14 hereof, (c) promptly after receipt of such certificates or depositary receipts, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (d) when appropriate, after receipt promptly deliver such cash to or upon the order of the registered holder of such Right Certificate. In the event that the Company is obligated to issue other securities (including Common Stock) of the Company, pay cash or distribute other property pursuant to Section 11.1 hereof, the Company will make all arrangements necessary so that such other securities, cash or other property are available for distribution by the Rights Agent, if and when appropriate. The payment of the Exercise Price may be made in cash or by certified or bank check payable to the order of the Company, or by wire transfer of immediately available funds to the account of the Company (provided that notice of such wire transfer shall be given by the holder of the related Right to the Rights Agent).
7.4 In case the registered holder of any Right Certificate shall exercise less than all the Rights evidenced thereby, a new Right Certificate evidencing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent and delivered to the registered holder of such Right Certificate or to his duly authorized assigns, subject to the provisions of Section 14 hereof.
7.5 Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11.1.2 Event or Section 13 Event, any Rights beneficially owned by (a) an Acquiring Person or any Associate or Affiliate of an Acquiring Person, (b) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring Person) who becomes a transferee after the Acquiring Person becomes such or (c) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring Person) who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and receives such Rights pursuant to either (i) a transfer (whether or not for consideration) from the Acquiring Person to holders of equity interests in such Acquiring Person or to any Person with whom the Acquiring Person has any continuing agreement, arrangement or understanding regarding the transferred Rights, the shares of Common Stock of the Company associated with such Rights or the Company, or (ii) a transfer which the Board of Directors of the Company has determined is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 7.5, shall be null and void without any further action and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under any provision of this Agreement or otherwise. The Company shall use all reasonable efforts to ensure that the provisions of this Section 7.5 and Section 4.2 hereof are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or any Affiliates or Associates of an Acquiring Person or any transferee of any of them hereunder.
7.6 Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless such registered holder shall have (a) completed and signed the certificate contained in the form of election to purchase set forth on the reverse side of the Right Certificate surrendered for such exercise and (b) provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company shall reasonably request.Tax Benefits; and
Appears in 1 contract
Sources: Rights Agreement
Exercise of Rights; Exercise Price; Expiration Date of Rights. 7.1 (a) Subject to Section 7.5 7(e) hereof, the registered holder of any Right Rights Certificate may exercise the Rights evidenced thereby (except as otherwise provided hereinherein including, without limitation, in the restrictions on exercisability set forth in Sections 9(c), 11(a)(iii) and 23(a) hereof) in whole or in part at any time after the Distribution Date upon surrender of the Right Rights Certificate, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, to the Rights Agent at the office or offices of the Rights Agent designated for such purpose, together with payment of the aggregate Exercise Price for the total number of each one one-thousandths thousandth of a share of Preferred Stock (or Common Stock, other securities, cash or other assets, as the case may be) as to which such surrendered the Rights are then exercised, at or exercised prior to the earlier earliest of (ai) the Close of Business on June 15, 2019 or such later date as may be established by the tenth anniversary Board prior to the expiration of the date Rights as long as the extension is submitted to the stockholders of this Agreement the Company for ratification at the next annual meeting of stockholders succeeding such extension (the "“Final Expiration Date"”), ; (bii) the time at which the Rights are redeemed as provided in pursuant to Section 23 hereof or (cthe “Redemption Date”); (iii) the time at which such the Rights are exchanged as provided in pursuant to Section 24 hereof (the “Exchange Date”); (iv) the closing of any merger or other acquisition transaction involving the Company pursuant to an agreement of the type described in Section 13(f) at which time the Rights are terminated; (v) the Close of Business on the first day after the Company’s 2017 annual meeting of stockholders, if Stockholder Approval has not been obtained on or prior to the Close of Business on the first day after the Company’s 2017 annual meeting of stockholders (the “Early Expiration Date”); (vi) the Close of Business on the effective date of the repeal of Section 382 of the Code if the Board determines that this Agreement is no longer necessary or desirable for the preservation of Tax Benefits; and (vii) the Close of Business on the first day of a taxable year of the Company to which the Board determines that no Tax Benefits are available to be carried forward (the earliest of (a), i) – (b) or (cvii) being herein referred to as the "“Expiration Date"”). Except as set forth in Section 7.5 hereof and notwithstanding any other provision of this Agreement, any Person who prior .
(b) Each Right shall entitle the registered holder thereof to the Distribution Date becomes a record holder of shares of Common Stock of the Company may exercise all of the rights purchase one one-thousandth of a registered holder share of a Right Certificate with respect to the Rights associated with such shares of Common Stock of the Company in accordance with the provisions of this Agreement, as of the date such Person becomes a record holder of shares of Common Stock of the Company.
7.2 Preferred Stock. The Exercise Price for each one one-thousandth of a share of Preferred Stock pursuant to the exercise of a Right shall be initially be one hundred dollars ($100)3.30, and shall be subject to adjustment from time to time as provided in Section Sections 11 and Section 13 hereof and shall be payable in lawful money of the United States of America in accordance with paragraph (c) of this Section 7.3 below7.
7.3 As promptly as practicable following the Distribution Date, the Company shall deposit with a corporation, trust, bank or similar institution in good standing organized under the laws of the United States or any State of the United States, which is authorized under such laws to exercise corporate trust or stock transfer powers and is subject to supervision or examination by a federal or state authority (such institution is hereinafter referred to as the "Depositary Agent"), certificates representing the shares of Preferred Stock that may be acquired upon exercise of the Rights and the Company shall cause such Depositary Agent to enter into an agreement pursuant to which the Depositary Agent shall issue receipts representing interests in the shares of Preferred Stock so deposited. c) Upon receipt of a Right Rights Certificate representing exercisable Rights, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, accompanied by payment payment, with respect to each Right so exercised, of the Exercise Price for per one one-thousandth of a share of Preferred Stock (or Common Stock, other securities, cash or other assets, as the shares case may be) to be purchased and an amount equal to any applicable transfer tax (as determined by the Rights Agent) in cashor governmental charge, or by certified check or bank draft payable to the order of the Company, then the Rights Agent shall, subject to Section 20.11 18(j) hereof, thereupon promptly (ai) (A) requisition from any transfer agent of the Depositary Agent (or make available, if the Rights Agent is the Depository Agent) depository receipts or Preferred Stock certificates for the representing such number of one one-thousandths of a share of Preferred Stock (or fractions of shares that are integral multiples of one one-thousandth of a share of Preferred Stock) as are to be purchased and the Company hereby irrevocably authorizes the Depositary Agent shall direct its transfer agent to comply with all such requests; or (B) if the Company has elected to deposit the total number of shares of Preferred Stock issuable upon exercise of the Rights hereunder with a depositary agent, requisition from the depositary agent depositary receipts representing such number of one one-thousandths of a share of Preferred Stock as are to be purchased (bin which case certificates for the shares of Preferred Stock represented by such receipts shall be deposited by the transfer agent with the depositary agent), and the Company shall direct the depositary to comply with all such requests; (ii) when appropriateif necessary to comply with this Agreement, requisition from the Company the amount of cash, if any, to be paid in lieu of issuance of fractional shares in accordance with Section 14 hereof, ; (ciii) promptly after receipt of such certificates or such depositary receipts, cause the same to be delivered to or upon the order of the registered holder of such Right Rights Certificate, registered in such name or names as may be designated by such holder holder; and (div) when appropriateif necessary to comply with this Agreement, after receipt promptly thereof, deliver such cash cash, if any, to or upon the order of the registered holder of such Right Rights Certificate. In the event that the Company is obligated to issue Common Stock or other securities (including Common Stock) of the Company, pay cash or and/or distribute other property assets pursuant to Section 11.1 11(a) hereof, the Company will shall make all arrangements necessary so that such Common Stock, other securities, cash or and/or other property assets are available for distribution by the Rights Agent, if and when appropriatenecessary to comply with this Agreement, and until so received, the Rights Agent shall have no duties or obligations with respect to such securities, cash and/or other assets. The payment of the Exercise Price (as such amount may be reduced pursuant to Section 11(a)(iii) hereof) may be made in cash or by certified or bank check or money order payable to the order of the Company, or by wire transfer of immediately available funds to the account of the Company (provided that notice of such wire transfer shall be given by the holder of the related Right to the Rights Agent).
7.4 (d) In case the event a registered holder of any Right Rights Certificate shall exercise exercises less than all the Rights evidenced thereby, a new Right Rights Certificate evidencing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent and delivered to to, or upon the order of, such holder, registered holder of in such Right Certificate name or to his duly authorized assignsnames as designated by such holder, subject to the provisions of Section Sections 6 and 14 hereof.
7.5 (e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11.1.2 Event or Section 13 Flip-In Event, any Rights beneficially owned Beneficially Owned by (ai) an Acquiring Person or any Associate or Affiliate a Related Person of an Acquiring Person, ; (bii) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring such Related Person) who becomes a transferee after the Acquiring Person becomes such such; or (ciii) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring such Related Person) who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and who receives such Rights pursuant to either (iA) a transfer (whether or not for consideration) from the Acquiring Person (or any such Related Person) to holders of equity interests in such Acquiring Person (or any such Related Person) or to any Person with whom the Acquiring Person (or any such Related Person) has any continuing written or oral plan, agreement, arrangement or understanding regarding the transferred Rights, the shares of Common Stock of the Company associated with such Rights or the Company, ; or (iiB) a transfer which that the Board of Directors of the Company has determined is in good faith to be part of a plan, agreement, arrangement or understanding which that has as a primary purpose or effect the avoidance of this Section 7.57(e), shall be null and void without any further action action, and no any holder of such Rights thereafter shall have any no rights or preferences whatsoever with respect to such Rights, whether under any provision of this Agreement Agreement, the Rights Certificates or otherwiseotherwise (including, without limitation, rights and preferences pursuant to Sections 7, 11, 13, 23 and 24 hereof). The Company shall use all commercially reasonable efforts to ensure that compliance with the provisions of this Section 7.5 7(e) and Section 4.2 hereof are complied with4(b) hereof, but shall neither the Company nor the Rights Agent have no any liability to any holder of Right Certificates Rights or any other Person as a result of its the Company’s failure to make any determinations determination with respect to an Acquiring Person or any Affiliates its Related Persons or Associates of an Acquiring Person or any transferee of any of them transferees hereunder.
7.6 (f) Notwithstanding anything in this Agreement or any Rights Certificate to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake take any action with respect to a registered holder of Rights upon the occurrence of any purported transfer or exercise as set forth in this Section 7 by such registered holder unless such registered holder shall have has (ai) properly completed and signed duly executed the certificate contained in following the form of election to purchase set forth on the reverse side of the Right Rights Certificate surrendered for such exercise exercise, and (bii) provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) of the Rights represented by such Rights Certificate or Affiliates or Associates Related Persons thereof as the Company or the Rights Agent reasonably requests.
(g) Except for those provisions herein that expressly survive the termination of this Agreement, this Agreement shall reasonably requestterminate upon the earlier of the Expiration Date and such time as all outstanding Rights have been exercised, redeemed or exchanged hereunder.
Appears in 1 contract
Sources: Rights Agreement (Active Power Inc)
Exercise of Rights; Exercise Price; Expiration Date of Rights. 7.1 (a) Subject to Section 7.5 7(e) hereof, the registered holder of any Right Rights Certificate may exercise the Rights evidenced thereby (except as otherwise provided hereinherein including, without limitation, in the restrictions on exercisability set forth in Sections 9(c), 11(a)(iii) and 23(a) hereof) in whole or in part at any time after the Distribution Date upon surrender of the Right Rights Certificate, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, to the Rights Agent at the office or offices of the Rights Agent designated for such purpose, together with payment of the aggregate Exercise Price for the total number of each one one-thousandths thousandth of a share of Preferred Stock (or Common Stock, other securities, cash or other assets, as the case may be) as to which such surrendered the Rights are then exercised, at or prior to the earlier earliest of (ai) the Close of Business on the tenth anniversary of the date of this Agreement June 26, 2019 (the "“Final Expiration Date"”), ; (bii) the time at which the Rights are redeemed as provided in pursuant to Section 23 hereof or (cthe “Redemption Date”); (iii) the time at which such the Rights are exchanged as provided in pursuant to Section 24 hereof (the “Exchange Date”); or (iv) the closing of any merger or other acquisition transaction involving the Company pursuant to an agreement of the type described in Section 1(h)(ii)(A)(4) and Section 13(f) at which time the Rights are terminated; (the earliest of (ai), (bii) or (ciii) and (iv) being herein referred to as the "“Expiration Date"”). Except as set forth in Section 7.5 hereof and notwithstanding any other provision of this Agreement, any Person who prior .
(b) Each Right shall entitle the registered holder thereof to the Distribution Date becomes a record holder of shares of Common Stock of the Company may exercise all of the rights purchase one one-thousandth of a registered holder share of a Right Certificate with respect to the Rights associated with such shares of Common Stock of the Company in accordance with the provisions of this Agreement, as of the date such Person becomes a record holder of shares of Common Stock of the Company.
7.2 Preferred Stock. The Exercise Price for each one one-thousandth of a share of Preferred Stock pursuant to the exercise of a Right shall be initially be one hundred dollars ($100)100.0, and shall be subject to adjustment from time to time as provided in Section Sections 11 and Section 13 hereof and shall be payable in lawful money of the United States of America in accordance with paragraph (c) of this Section 7.3 below7.
7.3 As promptly as practicable following the Distribution Date, the Company shall deposit with a corporation, trust, bank or similar institution in good standing organized under the laws of the United States or any State of the United States, which is authorized under such laws to exercise corporate trust or stock transfer powers and is subject to supervision or examination by a federal or state authority (such institution is hereinafter referred to as the "Depositary Agent"), certificates representing the shares of Preferred Stock that may be acquired upon exercise of the Rights and the Company shall cause such Depositary Agent to enter into an agreement pursuant to which the Depositary Agent shall issue receipts representing interests in the shares of Preferred Stock so deposited. c) Upon receipt of a Right Rights Certificate representing exercisable Rights, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, accompanied by payment payment, with respect to each Right so exercised, of the Exercise Price for per one one-thousandth of a share of Preferred Stock (or Common Stock, other securities, cash or other assets, as the shares case may be) to be purchased and an amount equal to any applicable transfer tax (as determined by the Rights Agent) in cashor charge, or by certified check or bank draft payable to the order of the Company, then the Rights Agent shall, subject to Section 20.11 18(j) hereof, thereupon promptly (ai) (A) requisition from any transfer agent of the Depositary Agent (or make available, if the Rights Agent is the Depository Agent) depository receipts or Preferred Stock certificates for the representing such number of one one-thousandths of a share of Preferred Stock (or fractions of shares that are integral multiples of one one-thousandth of a share of Preferred Stock) as are to be purchased and the Company hereby irrevocably authorizes the Depositary Agent shall direct its transfer agent to comply with all such requests; or (B) if the Company has elected to deposit the total number of shares of Preferred Stock issuable upon exercise of the Rights hereunder with a depositary agent, requisition from the depositary agent depositary receipts representing such number of one one-thousandths of a share of Preferred Stock as are to be purchased (bin which case certificates for the shares of Preferred Stock represented by such receipts shall be deposited by the transfer agent with the depositary agent), and the Company shall direct the depositary to comply with all such requests; (ii) when appropriateif necessary to comply with this Agreement, requisition from the Company the amount of cash, if any, to be paid in lieu of issuance of fractional shares in accordance with Section 14 hereof, ; (ciii) promptly after receipt of such certificates or such depositary receipts, cause the same to be delivered to or upon the order of the registered holder of such Right Rights Certificate, registered in such name or names as may be designated by such holder holder; and (div) when appropriateif necessary to comply with this Agreement, after receipt promptly thereof, deliver such cash cash, if any, to or upon the order of the registered holder of such Right Rights Certificate. In the event that the Company is obligated to issue Common Stock or other securities (including Common Stock) of the Company, pay cash or and/or distribute other property assets pursuant to Section 11.1 11(a) hereof, the Company will shall make all arrangements necessary so that such Common Stock, other securities, cash or and/or other property assets are available for distribution by the Rights Agent, if and when appropriatenecessary to comply with this Agreement, and until so received, the Rights Agent shall have no duties or obligations with respect to such securities, cash and/or other assets. The payment of the Exercise Price (as such amount may be reduced pursuant to Section 11(a)(iii) hereof) may be made in cash or by certified or bank check or money order payable to the order of the Company, or by wire transfer of immediately available funds to the account of the Company (provided that notice of such wire transfer shall be given by the holder of the related Right to the Rights Agent).
7.4 (d) In case the event a registered holder of any Right Rights Certificate shall exercise exercises less than all the Rights evidenced thereby, a new Right Rights Certificate evidencing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent and delivered to to, or upon the order of, such holder, registered holder of in such Right Certificate name or to his duly authorized assignsnames as designated by such holder, subject to the provisions of Section Sections 6 and 14 hereof.
7.5 (e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11.1.2 Event or Section 13 Flip-In Event, any Rights beneficially owned Beneficially Owned by (ai) an Acquiring Person or any Associate or Affiliate a Related Person of an Acquiring Person, ; (bii) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring such Related Person) who becomes a transferee after the Acquiring Person becomes such such; or (ciii) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring such Related Person) who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and who receives such Rights pursuant to either (iA) a transfer (whether or not for consideration) from the Acquiring Person (or any such Related Person) to holders of equity interests in such Acquiring Person (or any such Related Person) or to any Person with whom the Acquiring Person (or any such Related Person) has any continuing written or oral plan, agreement, arrangement or understanding regarding the transferred Rights, the shares of Common Stock of the Company associated with such Rights or the Company, ; or (iiB) a transfer which that the Board of Directors of the Company has determined is in good faith to be part of a plan, agreement, arrangement or understanding which that has as a primary purpose or effect the avoidance of this Section 7.57(e), shall be null and void without any further action action, and no any holder of such Rights thereafter shall have any no rights or preferences whatsoever with respect to such Rights, whether under any provision of this Agreement Agreement, the Rights Certificates or otherwiseotherwise (including, without limitation, rights and preferences pursuant to Sections 7, 11, 13, 23 and 24 hereof). The Company shall use all commercially reasonable efforts to ensure that compliance with the provisions of this Section 7.5 7(e) and Section 4.2 hereof are complied with4(b) hereof, but shall neither the Company nor the Rights Agent have no any liability to any holder of Right Certificates Rights or any other Person as a result of its the Company’s failure to make any determinations determination with respect to an Acquiring Person or any Affiliates its Related Persons or Associates of an Acquiring Person or any transferee of any of them transferees hereunder.
7.6 (f) Notwithstanding anything in this Agreement or any Rights Certificate to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake take any action with respect to a registered holder of Rights upon the occurrence of any purported transfer or exercise as set forth in this Section 7 by such registered holder unless such registered holder shall have has (ai) properly completed and signed duly executed the certificate contained in following the form of election to purchase set forth on the reverse side of the Right Rights Certificate surrendered for such exercise exercise, and (bii) provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) of the Rights represented by such Rights Certificate or Affiliates or Associates Related Persons thereof as the Company shall reasonably requestrequests.
Appears in 1 contract
Sources: Rights Agreement (Freds Inc)
Exercise of Rights; Exercise Price; Expiration Date of Rights. 7.1 (a) Subject to Section 7.5 7(e) hereof, the registered holder of any Right Rights Certificate may exercise the Rights evidenced thereby (except as otherwise provided hereinherein including, without limitation, in the restrictions on exercisability set forth in Sections 9(c), 11(a)(iii) and 23(a) hereof) in whole or in part at any time after the Distribution Date upon surrender of the Right Rights Certificate, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, to the Rights Agent at the office or offices of the Rights Agent designated for such purpose, together with payment of the aggregate Exercise Price for the total number of each one one-thousandths thousandth of a share of Preferred Stock (or Common Stock, other securities, cash or other assets, as the case may be) as to which such surrendered the Rights are then exercised, at or exercised prior to the earlier earliest of (ai) the Close of Business on March 16, 2020 or such later date as may be established by the tenth anniversary Board prior to the expiration of the date Rights as long as the extension is submitted to the stockholders of this Agreement the Company for ratification at the next annual meeting of stockholders succeeding such extension (the "“Final Expiration Date"”), ; (bii) the time at which the Rights are redeemed as provided in pursuant to Section 23 hereof or (cthe “Redemption Date”); (iii) the time at which such the Rights are exchanged as provided in pursuant to Section 24 hereof (the “Exchange Date”); (iv) the closing of any merger or other acquisition transaction involving the Company pursuant to an agreement of the type described in Section 13 at which time the Rights are terminated; (v) the Close of Business on the first day after the Company’s 2017 annual meeting of stockholders, if Stockholder Approval has not been obtained at such meeting (the “Early Expiration Date”); (vi) the Close of Business on the effective date of the repeal of Section 382 of the Code if the Board determines that this Agreement is no longer necessary or desirable for the preservation of Tax Benefits; (vii) the Close of Business on the first day of a taxable year of the Company to which the Board determines that no Tax Benefits are available to be carried forward; and (viii) the Close of Business on the first day after the Board of Directors determines by resolution in its business judgment that the Agreement is no longer necessary or appropriate (the earliest of (a), i) – (b) or (cviii) being herein referred to as the "“Expiration Date"”). Except as set forth in Section 7.5 hereof and notwithstanding any other provision of this Agreement, any Person who prior .
(b) Each Right shall entitle the registered holder thereof to the Distribution Date becomes a record holder of shares of Common Stock of the Company may exercise all of the rights purchase one one-thousandth of a registered holder share of a Right Certificate with respect to the Rights associated with such shares of Common Stock of the Company in accordance with the provisions of this Agreement, as of the date such Person becomes a record holder of shares of Common Stock of the Company.
7.2 Preferred Stock. The Exercise Price for each one one-thousandth of a share of Preferred Stock pursuant to the exercise of a Right shall be initially be one hundred dollars ($100)1.10, and shall be subject to adjustment from time to time as provided in Section 11 and Section 13 hereof and shall be payable in lawful money of the United States of America in accordance with paragraph (c) of this Section 7.3 below7.
7.3 As promptly as practicable following the Distribution Date, the Company shall deposit with a corporation, trust, bank or similar institution in good standing organized under the laws of the United States or any State of the United States, which is authorized under such laws to exercise corporate trust or stock transfer powers and is subject to supervision or examination by a federal or state authority (such institution is hereinafter referred to as the "Depositary Agent"), certificates representing the shares of Preferred Stock that may be acquired upon exercise of the Rights and the Company shall cause such Depositary Agent to enter into an agreement pursuant to which the Depositary Agent shall issue receipts representing interests in the shares of Preferred Stock so deposited. c) Upon receipt of a Right Rights Certificate representing exercisable Rights, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, accompanied by payment payment, with respect to each Right so exercised, of the Exercise Price for per one one-thousandth of a share of Preferred Stock (or Common Stock, other securities, cash or other assets, as the shares case may be) to be purchased and an amount equal to any applicable transfer tax (as determined by the Rights Agent) in cashor governmental charge, or by certified check or bank draft payable to the order of the Company, then the Rights Agent shall, subject to Section 20.11 18(j) hereof, thereupon promptly (ai) (A) requisition from any transfer agent of the Depositary Agent (or make available, if the Rights Agent is the Depository Agent) depository receipts or Preferred Stock certificates for the representing such number of one one-thousandths of a share of Preferred Stock (or fractions of shares that are integral multiples of one one-thousandth of a share of Preferred Stock) as are to be purchased and the Company hereby irrevocably authorizes the Depositary Agent shall direct its transfer agent to comply with all such requests; or (B) if the Company has elected to deposit the total number of shares of Preferred Stock issuable upon exercise of the Rights hereunder with a depositary agent, requisition from the depositary agent depositary receipts representing such number of one one-thousandths of a share of Preferred Stock as are to be purchased (bin which case certificates for the shares of Preferred Stock represented by such receipts shall be deposited by the transfer agent with the depositary agent), and the Company shall direct the depositary to comply with all such requests; (ii) when appropriateif necessary to comply with this Agreement, requisition from the Company the amount of cash, if any, to be paid in lieu of issuance of fractional shares in accordance with Section 14 hereof, ; (ciii) promptly after receipt of such certificates or such depositary receipts, cause the same to be delivered to or upon the order of the registered holder of such Right Rights Certificate, registered in such name or names as may be designated by such holder holder; and (div) when appropriateif necessary to comply with this Agreement, after receipt promptly thereof, deliver such cash cash, if any, to or upon the order of the registered holder of such Right Rights Certificate. In the event that the Company is obligated to issue Common Stock or other securities (including Common Stock) of the Company, pay cash or and/or distribute other property assets pursuant to Section 11.1 11(a) hereof, the Company will shall make all arrangements necessary so that such Common Stock, other securities, cash or and/or other property assets are available for distribution by the Rights Agent, if and when appropriatenecessary to comply with this Agreement, and until so received, the Rights Agent shall have no duties or obligations with respect to such securities, cash and/or other assets. The payment of the Exercise Price (as such amount may be reduced pursuant to Section 11(a)(iii) hereof) may be made in cash or by certified or bank check or money order payable to the order of the Company, or by wire transfer of immediately available funds to the account of the Company (provided that notice of such wire transfer shall be given by the holder of the related Right to the Rights Agent).
7.4 (d) In case the event a registered holder of any Right Rights Certificate shall exercise exercises less than all the Rights evidenced thereby, a new Right Rights Certificate evidencing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent and delivered to to, or upon the order of, such holder, registered holder of in such Right Certificate name or to his duly authorized assignsnames as designated by such holder, subject to the provisions of Section Sections 6 and 14 hereof.
7.5 (e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11.1.2 Event or Section 13 Flip-In Event, any Rights beneficially owned Beneficially Owned by (ai) an Acquiring Person or any Associate or Affiliate a Related Person of an Acquiring Person, ; (bii) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring such Related Person) who becomes a transferee after the Acquiring Person becomes such such; or (ciii) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring such Related Person) who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and who receives such Rights pursuant to either (iA) a transfer (whether or not for consideration) from the Acquiring Person (or any such Related Person) to holders of equity interests in such Acquiring Person (or any such Related Person) or to any Person with whom the Acquiring Person (or any such Related Person) has any continuing written or oral plan, agreement, arrangement or understanding regarding the transferred Rights, the shares of Common Stock of the Company associated with such Rights or the Company, ; or (iiB) a transfer which that the Board of Directors of the Company has determined is in good faith to be part of a plan, agreement, arrangement or understanding which that has as a primary purpose or effect of the avoidance of this Section 7.57(e), shall be null and void without any further action action, and no any holder of such Rights thereafter shall have any no rights or preferences whatsoever with respect to such Rights, whether under any provision of this Agreement Agreement, the Rights Certificates or otherwiseotherwise (including, without limitation, rights and preferences pursuant to Sections 7, 11, 23 and 24 hereof). The Company shall use all commercially reasonable efforts to ensure that compliance with the provisions of this Section 7.5 7(e) and Section 4.2 hereof are complied with4(b) hereof, but shall neither the Company nor the Rights Agent have no any liability to any holder of Right Certificates Rights or any other Person as a result of its the Company’s failure to make any determinations determination with respect to an Acquiring Person or any Affiliates its Related Persons or Associates of an Acquiring Person or any transferee of any of them transferees hereunder.
7.6 (f) Notwithstanding anything in this Agreement or any Rights Certificate to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake take any action with respect to a registered holder of Rights upon the occurrence of any purported transfer or exercise as set forth in this Section 7 by such registered holder unless such registered holder shall have has (ai) properly completed and signed duly executed the certificate contained in following the form of election to purchase set forth on the reverse side of the Right Rights Certificate surrendered for such exercise exercise, and (bii) provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) of the Rights represented by such Rights Certificate or Affiliates or Associates Related Persons thereof as the Company or the Rights Agent reasonably requests.
(g) Except for those provisions herein that expressly survive the termination of this Agreement, this Agreement shall reasonably requestterminate upon the earlier of the Expiration Date and such time as all outstanding Rights have been exercised, redeemed or exchanged hereunder.
(h) Notwithstanding any provision of this Agreement to the contrary, the Company, by action of the Board in its sole discretion acting in its business judgment, may at any time before or after any Person becomes an Acquiring Person amend this Agreement to make the provisions of this Agreement inapplicable to a particular transaction by which a Person might otherwise become an Acquiring Person or to otherwise alter the terms and conditions of this Agreement as they may apply with respect to any such transaction.
Appears in 1 contract
Sources: Rights Agreement (Tengasco Inc)
Exercise of Rights; Exercise Price; Expiration Date of Rights. 7.1 (a) Subject to Section 7.5 7(e) hereof, the registered holder of any Right Rights Certificate may exercise the Rights evidenced thereby (except as otherwise provided hereinherein including, without limitation, in the restrictions on exercisability set forth in Sections 9(c), 11(a)(iii) and 23(a) hereof) in whole or in part at any time after the Distribution Date upon surrender of the Right Rights Certificate, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, to the Rights Agent at the office or offices of the Rights Agent designated for such purpose, together with payment of the aggregate Exercise Price for the total number of each one one-thousandths thousandth of a share of Preferred Stock (or Common Stock, other securities, cash or other assets, as the case may be) as to which such surrendered the Rights are then exercised, at or exercised prior to the earlier earliest of (ai) the Close of Business on March 23, 2023 or such later date as may be established by the tenth anniversary Board prior to the expiration of the date Rights as long as the extension is submitted to the stockholders of this Agreement the Company for ratification at the next annual meeting of stockholders succeeding such extension (the "“Final Expiration Date"”), ; (bii) the time at which the Rights are redeemed as provided in pursuant to Section 23 hereof or (cthe “Redemption Date”); (iii) the time at which such the Rights are exchanged as provided in pursuant to Section 24 hereof (the “Exchange Date”); (iv) the closing of any merger or other acquisition transaction involving the Company pursuant to an agreement of the type described in Section 13(f) at which time the Rights are terminated; (the “Early Expiration Date”); (vi) the Close of Business on the effective date of the repeal of Section 382 of the Code if the Board determines that this Agreement is no longer necessary or desirable for the preservation of Tax Benefits; and (vii) the Close of Business on the first day of a taxable year of the Company to which the Board determines that no Tax Benefits are available to be carried forward (the earliest of (a), i) - (b) or (cvii) being herein referred to as the "“Expiration Date"”). Except as set forth in Section 7.5 hereof and notwithstanding any other provision of this Agreement, any Person who prior .
(b) Each Right shall entitle the registered holder thereof to the Distribution Date becomes a record holder of shares of Common Stock of the Company may exercise all of the rights purchase one one-thousandth of a registered holder share of a Right Certificate with respect to the Rights associated with such shares of Common Stock of the Company in accordance with the provisions of this Agreement, as of the date such Person becomes a record holder of shares of Common Stock of the Company.
7.2 Preferred Stock. The Exercise Price for each one one-thousandth of a share of Preferred Stock pursuant to the exercise of a Right shall be initially be one hundred dollars ($100), 5.00 and shall be subject to adjustment from time to time as provided in Section Sections 11 and Section 13 hereof and shall be payable in lawful money of the United States of America in accordance with paragraph (c) of this Section 7.3 below7.
7.3 As promptly as practicable following the Distribution Date, the Company shall deposit with a corporation, trust, bank or similar institution in good standing organized under the laws of the United States or any State of the United States, which is authorized under such laws to exercise corporate trust or stock transfer powers and is subject to supervision or examination by a federal or state authority (such institution is hereinafter referred to as the "Depositary Agent"), certificates representing the shares of Preferred Stock that may be acquired upon exercise of the Rights and the Company shall cause such Depositary Agent to enter into an agreement pursuant to which the Depositary Agent shall issue receipts representing interests in the shares of Preferred Stock so deposited. c) Upon receipt of a Right Rights Certificate representing exercisable Rights, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, accompanied by written confirmation from the Company of receipt of payment with respect to each Right so exercised, of the Exercise Price for per one one-thousandth of a share of Preferred Stock (or Common Stock, other securities, cash or other assets, as the shares case may be) to be purchased and an amount equal to any applicable transfer tax (as determined by the Rights Agent) in cashor governmental charge, or by certified check or bank draft payable to the order of the Company, then the Rights Agent shall, subject to Section 20.11 18(j) hereof, thereupon promptly (ai) (A) requisition from any transfer agent of the Depositary Agent (or make available, if the Rights Agent is the Depository Agent) depository receipts or Preferred Stock certificates for the representing such number of one one-thousandths of a share of Preferred Stock (or fractions of shares that are integral multiples of one one-thousandth of a share of Preferred Stock) as are to be purchased and the Company hereby irrevocably authorizes the Depositary Agent shall direct its transfer agent to comply with all such requests; or (B) if the Company has elected to deposit the total number of shares of Preferred Stock issuable upon exercise of the Rights hereunder with a depositary agent, requisition from the depositary agent depositary receipts representing such number of one one-thousandths of a share of Preferred Stock as are to be purchased (bin which case certificates for the shares of Preferred Stock represented by such receipts shall be deposited by the transfer agent with the depositary agent), and the Company shall direct the depositary to comply with all such requests; (ii) when appropriateif necessary to comply with this Agreement, requisition from the Company the amount of cash, if any, to be paid in lieu of issuance of fractional shares in accordance with Section 14 hereof, ; (ciii) promptly after receipt of such certificates or such depositary receipts, cause the same to be delivered to or upon the order of the registered holder of such Right Rights Certificate, registered in such name or names as may be designated by such holder holder; and (div) when appropriateif necessary to comply with this Agreement, after receipt promptly thereof, deliver such cash cash, if any, to or upon the order of the registered holder of such Right Rights Certificate. In the event that the Company is obligated to issue Common Stock or other securities (including Common Stock) of the Company, pay cash or and/or distribute other property assets pursuant to Section 11.1 11(a) hereof, the Company will shall make all arrangements necessary so that such Common Stock, other securities, cash or and/or other property assets are available for distribution by the Rights Agent, if and when appropriatenecessary to comply with this Agreement, and until so received, the Rights Agent shall have no duties or obligations with respect to such securities, cash and/or other assets. The payment of the Exercise Price (as such amount may be reduced pursuant to Section 11(a)(iii) hereof) may be made in cash cash, by wire payment or by certified or bank check or money order payable to the order of the Company, or by wire transfer of immediately available funds to the account of the Company (provided that notice of such wire transfer shall be given by the holder of the related Right to the Rights Agent).
7.4 (d) In case the event a registered holder of any Right Rights Certificate shall exercise exercises less than all the Rights evidenced thereby, a new Right Rights Certificate evidencing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent and delivered to to, or upon the order of, such holder, registered holder of in such Right Certificate name or to his duly authorized assignsnames as designated by such holder, subject to the provisions of Section Sections 6 and 14 hereof.
7.5 (e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11.1.2 Event or Section 13 Flip-In Event, any Rights beneficially owned Beneficially Owned by (ai) an Acquiring Person or any Associate or Affiliate a Related Person of an Acquiring Person, ; (bii) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring such Related Person) who becomes a transferee after the Acquiring Person becomes such such; or (ciii) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring such Related Person) who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and who receives such Rights pursuant to either (iA) a transfer (whether or not for consideration) from the Acquiring Person (or any such Related Person) to holders of equity interests in such Acquiring Person (or any such Related Person) or to any Person with whom the Acquiring Person (or any such Related Person) has any continuing written or oral plan, agreement, arrangement or understanding regarding the transferred Rights, the shares of Common Stock of the Company associated with such Rights or the Company, ; or (iiB) a transfer which that the Board of Directors of the Company has determined is in good faith to be part of a plan, agreement, arrangement or understanding which that has as a primary purpose or effect the avoidance of this Section 7.57(e), shall be null and void without any further action action, and no any holder of such Rights thereafter shall have any no rights or preferences whatsoever with respect to such Rights, whether under any provision of this Agreement Agreement, the Rights Certificates or otherwiseotherwise (including, without limitation, rights and preferences pursuant to Sections 7, 11, 13, 23 and 24 hereof). The Company shall use all commercially reasonable efforts to ensure that compliance with the provisions of this Section 7.5 7(e) and Section 4.2 hereof are complied with4(b) hereof, but shall neither the Company nor the Rights Agent have no any liability to any holder of Right Certificates Rights or any other Person as a result of its the Company’s failure to make any determinations determination with respect to an Acquiring Person or any Affiliates its Related Persons or Associates of an Acquiring Person or any transferee of any of them transferees hereunder.
7.6 (f) Notwithstanding anything in this Agreement or any Rights Certificate to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake take any action with respect to a registered holder of Rights upon the occurrence of any purported transfer or exercise as set forth in this Section 7 by such registered holder unless such registered holder shall have has (ai) properly completed and signed duly executed the certificate contained in following the form of election to purchase set forth on the reverse side of the Right Rights Certificate surrendered for such exercise exercise, and (bii) provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) of the Rights represented by such Rights Certificate or Affiliates or Associates Related Persons thereof as the Company or the Rights Agent reasonably requests.
(g) Except for those provisions herein that expressly survive the termination of this Agreement, this Agreement shall reasonably requestterminate upon the earlier of the Expiration Date and such time as all outstanding Rights have been exercised, redeemed or exchanged hereunder.
Appears in 1 contract
Exercise of Rights; Exercise Price; Expiration Date of Rights. 7.1 (a) Subject to Section 7.5 7(e) hereof, the registered holder of any Right Rights Certificate may exercise the Rights evidenced thereby (except as otherwise provided hereinherein including, without limitation, in the restrictions on exercisability set forth in Sections 9(c), 11(a)(iii) and 23(a) hereof) in whole or in part at any time after the Distribution Date upon surrender of the Right Rights Certificate, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, to the Rights Agent at the office or offices of the Rights Agent designated for such purpose, together with payment of the aggregate Exercise Price for the total number of each one one-thousandths thousandth of a share of Preferred Stock (or Common Stock, other securities, cash or other assets, as the case may be) as to which such surrendered the Rights are then exercised, at or exercised prior to the earlier earliest of (ai) the Close of Business on January 27, 2020 or such later date as may be established by the tenth anniversary Board prior to the expiration of the date Rights as long as the extension is submitted to the stockholders of this Agreement the Company for ratification at the next annual meeting of stockholders succeeding such extension (the "“Final Expiration Date"”), ; (bii) the time at which the Rights are redeemed as provided in pursuant to Section 23 hereof or (cthe “Redemption Date”); (iii) the time at which such the Rights are exchanged as provided in pursuant to Section 24 hereof (the “Exchange Date”); (iv) the closing of any merger or other acquisition transaction involving the Company pursuant to an agreement of the type described in Section 13(f) at which time the Rights are terminated; (v) the Close of Business on the first day after the Company’s 2017 annual meeting of stockholders, if Stockholder Approval has not been obtained at such meeting (the “Early Expiration Date”); (vi) the Close of Business on the effective date of the repeal of Section 382 of the Code if the Board determines that this Agreement is no longer necessary or desirable for the preservation of Tax Benefits; and (vii) the Close of Business on the first day of a taxable year of the Company to which the Board determines that no Tax Benefits are available to be carried forward (the earliest of (a), i) – (b) or (cvii) being herein referred to as the "“Expiration Date"”). Except as set forth in Section 7.5 hereof and notwithstanding any other provision of this Agreement, any Person who prior .
(b) Each Right shall entitle the registered holder thereof to the Distribution Date becomes a record holder of shares of Common Stock of the Company may exercise all of the rights purchase one one-thousandth of a registered holder share of a Right Certificate with respect to the Rights associated with such shares of Common Stock of the Company in accordance with the provisions of this Agreement, as of the date such Person becomes a record holder of shares of Common Stock of the Company.
7.2 Preferred Stock. The Exercise Price for each one one-thousandth of a share of Preferred Stock pursuant to the exercise of a Right shall be initially be one hundred dollars ($100)10.74, and shall be subject to adjustment from time to time as provided in Section Sections 11 and Section 13 hereof and shall be payable in lawful money of the United States of America in accordance with paragraph (c) of this Section 7.3 below7.
7.3 As promptly as practicable following the Distribution Date, the Company shall deposit with a corporation, trust, bank or similar institution in good standing organized under the laws of the United States or any State of the United States, which is authorized under such laws to exercise corporate trust or stock transfer powers and is subject to supervision or examination by a federal or state authority (such institution is hereinafter referred to as the "Depositary Agent"), certificates representing the shares of Preferred Stock that may be acquired upon exercise of the Rights and the Company shall cause such Depositary Agent to enter into an agreement pursuant to which the Depositary Agent shall issue receipts representing interests in the shares of Preferred Stock so deposited. c) Upon receipt of a Right Rights Certificate representing exercisable Rights, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, accompanied by payment payment, with respect to each Right so exercised, of the Exercise Price for per one one-thousandth of a share of Preferred Stock (or Common Stock, other securities, cash or other assets, as the shares case may be) to be purchased and an amount equal to any applicable transfer tax (as determined by the Rights Agent) in cashor governmental charge, or by certified check or bank draft payable to the order of the Company, then the Rights Agent shall, subject to Section 20.11 18(j) hereof, thereupon promptly (ai) (A) requisition from any transfer agent of the Depositary Agent (or make available, if the Rights Agent is the Depository Agent) depository receipts or Preferred Stock certificates for the representing such number of one one-thousandths of a share of Preferred Stock (or fractions of shares that are integral multiples of one one-thousandth of a share of Preferred Stock) as are to be purchased and the Company hereby irrevocably authorizes the Depositary Agent shall direct its transfer agent to comply with all such requests; or (B) if the Company has elected to deposit the total number of shares of Preferred Stock issuable upon exercise of the Rights hereunder with a depositary agent, requisition from the depositary agent depositary receipts representing such number of one one-thousandths of a share of Preferred Stock as are to be purchased (bin which case certificates for the shares of Preferred Stock represented by such receipts shall be deposited by the transfer agent with the depositary agent), and the Company shall direct the depositary to comply with all such requests; (ii) when appropriateif necessary to comply with this Agreement, requisition from the Company the amount of cash, if any, to be paid in lieu of issuance of fractional shares in accordance with Section 14 hereof, ; (ciii) promptly after receipt of such certificates or such depositary receipts, cause the same to be delivered to or upon the order of the registered holder of such Right Rights Certificate, registered in such name or names as may be designated by such holder holder; and (div) when appropriateif necessary to comply with this Agreement, after receipt promptly thereof, deliver such cash cash, if any, to or upon the order of the registered holder of such Right Rights Certificate. In the event that the Company is obligated to issue Common Stock or other securities (including Common Stock) of the Company, pay cash or and/or distribute other property assets pursuant to Section 11.1 11(a) hereof, the Company will shall make all arrangements necessary so that such Common Stock, other securities, cash or and/or other property assets are available for distribution by the Rights Agent, if and when appropriatenecessary to comply with this Agreement, and until so received, the Rights Agent shall have no duties or obligations with respect to such securities, cash and/or other assets. The payment of the Exercise Price (as such amount may be reduced pursuant to Section 11(a)(iii) hereof) may be made in cash or by certified or bank check or money order payable to the order of the Company, or by wire transfer of immediately available funds to the account of the Company (provided that notice of such wire transfer shall be given by the holder of the related Right to the Rights Agent).
7.4 (d) In case the event a registered holder of any Right Rights Certificate shall exercise exercises less than all the Rights evidenced thereby, a new Right Rights Certificate evidencing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent and delivered to to, or upon the order of, such holder, registered holder of in such Right Certificate name or to his duly authorized assignsnames as designated by such holder, subject to the provisions of Section Sections 6 and 14 hereof.
7.5 (e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11.1.2 Event or Section 13 Flip-In Event, any Rights beneficially owned Beneficially Owned by (ai) an Acquiring Person or any Associate or Affiliate a Related Person of an Acquiring Person, ; (bii) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring such Related Person) who becomes a transferee after the Acquiring Person becomes such such; or (ciii) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring such Related Person) who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and who receives such Rights pursuant to either (iA) a transfer (whether or not for consideration) from the Acquiring Person (or any such Related Person) to holders of equity interests in such Acquiring Person (or any such Related Person) or to any Person with whom the Acquiring Person (or any such Related Person) has any continuing written or oral plan, agreement, arrangement or understanding regarding the transferred Rights, the shares of Common Stock of the Company associated with such Rights or the Company, ; or (iiB) a transfer which that the Board of Directors of the Company has determined is in good faith to be part of a plan, agreement, arrangement or understanding which that has as a primary purpose or effect the avoidance of this Section 7.57(e), shall be null and void without any further action action, and no any holder of such Rights thereafter shall have any no rights or preferences whatsoever with respect to such Rights, whether under any provision of this Agreement Agreement, the Rights Certificates or otherwiseotherwise (including, without limitation, rights and preferences pursuant to Sections 7, 11, 13, 23 and 24 hereof). The Company shall use all commercially reasonable efforts to ensure that compliance with the provisions of this Section 7.5 7(e) and Section 4.2 hereof are complied with4(b) hereof, but shall neither the Company nor the Rights Agent have no any liability to any holder of Right Certificates Rights or any other Person as a result of its the Company’s failure to make any determinations determination with respect to an Acquiring Person or any Affiliates its Related Persons or Associates of an Acquiring Person or any transferee of any of them transferees hereunder.
7.6 (f) Notwithstanding anything in this Agreement or any Rights Certificate to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake take any action with respect to a registered holder of Rights upon the occurrence of any purported transfer or exercise as set forth in this Section 7 by such registered holder unless such registered holder shall have has (ai) properly completed and signed duly executed the certificate contained in following the form of election to purchase set forth on the reverse side of the Right Rights Certificate surrendered for such exercise exercise, and (bii) provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) of the Rights represented by such Rights Certificate or Affiliates or Associates Related Persons thereof as the Company or the Rights Agent reasonably requests.
(g) Except for those provisions herein that expressly survive the termination of this Agreement, this Agreement shall reasonably requestterminate upon the earlier of the Expiration Date and such time as all outstanding Rights have been exercised, redeemed or exchanged hereunder.
Appears in 1 contract
Exercise of Rights; Exercise Price; Expiration Date of Rights. 7.1 (a) Subject to Section 7.5 7(e) hereof, the registered holder of any Right Rights Certificate may exercise the Rights evidenced thereby (except as otherwise provided hereinherein including, without limitation, the restrictions on exercisability set forth in Section 7(c), Section 9(c), Section 11(a)(iii) and Section 23(a) hereof) in whole or in part at any time after the Distribution Date upon surrender of the Right Rights Certificate, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, to the Rights Agent at the principal office or offices of the Rights Agent designated for such purpose, accompanied by a Signature Guarantee and such other documentation as the Rights Agent may reasonably request, together with payment of the aggregate Exercise Price for with respect to the total number of one one-thousandths Units of a share of Preferred Common Stock (or other securities, cash or other assets, as the case may be) as to which such surrendered Rights are then exercisedexercisable, at or prior to the earlier earliest of (ai) the Close of Business on the tenth anniversary Final Expiration Date or such later date as may be established by the Board prior to the expiration of the date of this Agreement Rights; (the "Final Expiration Date"), (bii) the time at which the Rights are redeemed as provided in Section 23 hereof or hereof; (ciii) the time at which such Rights are exchanged as provided pursuant to Section 24 hereof; and (iv) the closing of any merger or other acquisition transaction involving the Company pursuant to an agreement of the type described in Section 24 13(e) hereof at which time the Rights are terminated (the earliest of (ai), (bii), (iii) or and (civ) being herein referred to as the "“Expiration Date"). Except as set forth in Section 7.5 hereof and notwithstanding any other provision of this Agreement, any Person who prior to the Distribution Date becomes a record holder of shares of Common Stock of the Company may exercise all of the rights of a registered holder of a Right Certificate with respect to the Rights associated with such shares of Common Stock of the Company in accordance with the provisions of this Agreement, as of the date such Person becomes a record holder of shares of Common Stock of the Company.
7.2 The Exercise Price for each one one-thousandth of a share of Preferred Stock pursuant to the exercise of a Right shall initially be one hundred dollars ($100), shall be subject to adjustment from time to time as provided in Section 11 and Section 13 hereof and shall be payable in lawful money of the United States of America in accordance with Section 7.3 below.
7.3 As promptly as practicable following the Distribution Date, the Company shall deposit with a corporation, trust, bank or similar institution in good standing organized under the laws of the United States or any State of the United States, which is authorized under such laws to exercise corporate trust or stock transfer powers and is subject to supervision or examination by a federal or state authority (such institution is hereinafter referred to as the "Depositary Agent"), certificates representing the shares of Preferred Stock that may be acquired upon exercise of the Rights and the Company shall cause such Depositary Agent to enter into an agreement pursuant to which the Depositary Agent shall issue receipts representing interests in the shares of Preferred Stock so deposited. Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase and the certificate on the reverse side thereof duly executed, accompanied by payment of the Exercise Price for the shares to be purchased and an amount equal to any applicable transfer tax (as determined by the Rights Agent) in cash, or by certified check or bank draft payable to the order of the Company, the Rights Agent shall, subject to Section 20.11 hereof, thereupon promptly (a) requisition from the Depositary Agent (or make available, if the Rights Agent is the Depository Agent) depository receipts or certificates for the number of one one-thousandths of a share of Preferred Stock to be purchased and the Company hereby irrevocably authorizes the Depositary Agent to comply with all such requests, (b) when appropriate, requisition from the Company the amount of cash, if any, to be paid in lieu of issuance of fractional shares in accordance with Section 14 hereof, (c) promptly after receipt of such certificates or depositary receipts, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (d) when appropriate, after receipt promptly deliver such cash to or upon the order of the registered holder of such Right Certificate. In the event that the Company is obligated to issue other securities (including Common Stock) of the Company, pay cash or distribute other property pursuant to Section 11.1 hereof, the Company will make all arrangements necessary so that such other securities, cash or other property are available for distribution by the Rights Agent, if and when appropriate. The payment of the Exercise Price may be made in cash or by certified or bank check payable to the order of the Company, or by wire transfer of immediately available funds to the account of the Company (provided that notice of such wire transfer shall be given by the holder of the related Right to the Rights Agent”).
7.4 In case the registered holder of any Right Certificate shall exercise less than all the Rights evidenced thereby, a new Right Certificate evidencing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent and delivered to the registered holder of such Right Certificate or to his duly authorized assigns, subject to the provisions of Section 14 hereof.
7.5 Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11.1.2 Event or Section 13 Event, any Rights beneficially owned by (a) an Acquiring Person or any Associate or Affiliate of an Acquiring Person, (b) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring Person) who becomes a transferee after the Acquiring Person becomes such or (c) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring Person) who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and receives such Rights pursuant to either (i) a transfer (whether or not for consideration) from the Acquiring Person to holders of equity interests in such Acquiring Person or to any Person with whom the Acquiring Person has any continuing agreement, arrangement or understanding regarding the transferred Rights, the shares of Common Stock of the Company associated with such Rights or the Company, or (ii) a transfer which the Board of Directors of the Company has determined is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 7.5, shall be null and void without any further action and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under any provision of this Agreement or otherwise. The Company shall use all reasonable efforts to ensure that the provisions of this Section 7.5 and Section 4.2 hereof are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or any Affiliates or Associates of an Acquiring Person or any transferee of any of them hereunder.
7.6 Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action with respect to a registered holder of Rights upon the occurrence of any purported exercise as set forth in this Section 7 unless such registered holder shall have (a) completed and signed the certificate contained in the form of election to purchase set forth on the reverse side of the Right Certificate surrendered for such exercise and (b) provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company shall reasonably request.
Appears in 1 contract
Sources: Rights Agreement
Exercise of Rights; Exercise Price; Expiration Date of Rights. 7.1 (a) Subject to Section 7.5 7(e) hereof, the registered holder of any Right Rights Certificate may exercise the Rights evidenced thereby (except as otherwise provided hereinherein including, without limitation, in the restrictions on exercisability set forth in Sections 9(c), 11(a)(iii) and 23(a) hereof) in whole or in part at any time after the Distribution Date upon surrender of the Right Rights Certificate, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, to the Rights Agent at the office or offices of the Rights Agent designated for such purpose, together with payment of the aggregate Exercise Price for the total number of each one one-thousandths thousandth of a share of Preferred Stock (or Common Stock, other securities, cash or other assets, as the case may be) as to which such surrendered the Rights are then exercised, at or exercised prior to the earlier earliest of (ai) the Close of Business on October 11, 2024, unless this Agreement is renewed up to two additional twelve (12) month periods through October 11, 2026, as may be approved by the tenth anniversary Board prior to the expiration of the Rights as long as each such twelve (12) month renewal period is submitted to the stockholders of the Company for their approval and is thereby approved, and, if not approved, with respect to any such twelve (12) month renewal period, then the last date of for which this Agreement is in effect (the "“Final Expiration Date"”), ; (bii) the time at which the Rights are redeemed as provided in pursuant to Section 23 hereof or (cthe “Redemption Date”); (iii) the time at which such the Rights are exchanged as provided in pursuant to Section 24 hereof (the “Exchange Date”); (iv) the closing of any merger or other acquisition transaction involving the Company pursuant to an agreement of the type described in Section 13(f) at which time the Rights are terminated; (the “Early Expiration Date”); (vi) the Close of Business on the effective date of the repeal of Section 382 of the Code if the Board determines that this Agreement is no longer necessary or desirable for the preservation of Tax Benefits; and (vii) the Close of Business on the first day of a taxable year of the Company to which the Board determines that no Tax Benefits are available to be carried forward (the earliest of (a), i) - (b) or (cvii) being herein referred to as the "“Expiration Date"”). Except as set forth in Section 7.5 hereof and notwithstanding any other provision of this Agreement, any Person who prior .
(b) Each Right shall entitle the registered holder thereof to the Distribution Date becomes a record holder of shares of Common Stock of the Company may exercise all of the rights purchase one one-thousandth of a registered holder share of a Right Certificate with respect to the Rights associated with such shares of Common Stock of the Company in accordance with the provisions of this Agreement, as of the date such Person becomes a record holder of shares of Common Stock of the Company.
7.2 Preferred Stock. The Exercise Price for each one one-thousandth of a share of Preferred Stock pursuant to the exercise of a Right shall be initially be one hundred dollars ($100), 5.00 and shall be subject to adjustment from time to time as provided in Section Sections 11 and Section 13 hereof and shall be payable in lawful money of the United States of America in accordance with paragraph (c) of this Section 7.3 below7.
7.3 As promptly as practicable following the Distribution Date, the Company shall deposit with a corporation, trust, bank or similar institution in good standing organized under the laws of the United States or any State of the United States, which is authorized under such laws to exercise corporate trust or stock transfer powers and is subject to supervision or examination by a federal or state authority (such institution is hereinafter referred to as the "Depositary Agent"), certificates representing the shares of Preferred Stock that may be acquired upon exercise of the Rights and the Company shall cause such Depositary Agent to enter into an agreement pursuant to which the Depositary Agent shall issue receipts representing interests in the shares of Preferred Stock so deposited. c) Upon receipt of a Right Rights Certificate representing exercisable Rights, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, accompanied by written confirmation from the Company of receipt of payment with respect to each Right so exercised, of the Exercise Price for per one one-thousandth of a share of Preferred Stock (or Common Stock, other securities, cash or other assets, as the shares case may be) to be purchased and an amount equal to any applicable transfer tax (as determined by the Rights Agent) in cashor governmental charge, or by certified check or bank draft payable to the order of the Company, then the Rights Agent shall, subject to Section 20.11 18(j) hereof, thereupon promptly (ai) (A) requisition from any transfer agent of the Depositary Agent (or make available, if the Rights Agent is the Depository Agent) depository receipts or Preferred Stock certificates for the representing such number of one one-thousandths of a share of Preferred Stock (or fractions of shares that are integral multiples of one one-thousandth of a share of Preferred Stock) as are to be purchased and the Company hereby irrevocably authorizes the Depositary Agent shall direct its transfer agent to comply with all such requests; or (B) if the Company has elected to deposit the total number of shares of Preferred Stock issuable upon exercise of the Rights hereunder with a depositary agent, requisition from the depositary agent depositary receipts representing such number of one one-thousandths of a share of Preferred Stock as are to be purchased (bin which case certificates for the shares of Preferred Stock represented by such receipts shall be deposited by the transfer agent with the depositary agent), and the Company shall direct the depositary to comply with all such requests; (ii) when appropriateif necessary to comply with this Agreement, requisition from the Company the amount of cash, if any, to be paid in lieu of issuance of fractional shares in accordance with Section 14 hereof, ; (ciii) promptly after receipt of such certificates or such depositary receipts, cause the same to be delivered to or upon the order of the registered holder of such Right Rights Certificate, registered in such name or names as may be designated by such holder holder; and (div) when appropriateif necessary to comply with this Agreement, after receipt promptly thereof, deliver such cash cash, if any, to or upon the order of the registered holder of such Right Rights Certificate. In the event that the Company is obligated to issue Common Stock or other securities (including Common Stock) of the Company, pay cash or and/or distribute other property assets pursuant to Section 11.1 11(a) hereof, the Company will shall make all arrangements necessary so that such Common Stock, other securities, cash or and/or other property assets are available for distribution by the Rights Agent, if and when appropriatenecessary to comply with this Agreement, and until so received, the Rights Agent shall have no duties or obligations with respect to such securities, cash and/or other assets. The payment of the Exercise Price (as such amount may be reduced pursuant to Section 11(a)(iii) hereof) may be made in cash cash, by wire payment or by certified or bank check or money order payable to the order of the Company, or by wire transfer of immediately available funds to the account of the Company (provided that notice of such wire transfer shall be given by the holder of the related Right to the Rights Agent).
7.4 (d) In case the event a registered holder of any Right Rights Certificate shall exercise exercises less than all the Rights evidenced thereby, a new Right Rights Certificate evidencing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent and delivered to to, or upon the order of, such holder, registered holder of in such Right Certificate name or to his duly authorized assignsnames as designated by such holder, subject to the provisions of Section Sections 6 and 14 hereof.
7.5 (e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11.1.2 Event or Section 13 Flip-In Event, any Rights beneficially owned Beneficially Owned by (ai) an Acquiring Person or any Associate or Affiliate a Related Person of an Acquiring Person, ; (bii) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring such Related Person) who becomes a transferee after the Acquiring Person becomes such such; or (ciii) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring such Related Person) who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and who receives such Rights pursuant to either (iA) a transfer (whether or not for consideration) from the Acquiring Person (or any such Related Person) to holders of equity interests in such Acquiring Person (or any such Related Person) or to any Person with whom the Acquiring Person (or any such Related Person) has any continuing written or oral plan, agreement, arrangement or understanding regarding the transferred Rights, the shares of Common Stock of the Company associated with such Rights or the Company, ; or (iiB) a transfer which that the Board of Directors of the Company has determined is in good faith to be part of a plan, agreement, arrangement or understanding which that has as a primary purpose or effect the avoidance of this Section 7.57(e), shall be null and void without any further action action, and no any holder of such Rights thereafter shall have any no rights or preferences whatsoever with respect to such Rights, whether under any provision of this Agreement Agreement, the Rights Certificates or otherwiseotherwise (including, without limitation, rights and preferences pursuant to Sections 7, 11, 13, 23 and 24 hereof). The Company shall use all commercially reasonable efforts to ensure that compliance with the provisions of this Section 7.5 7(e) and Section 4.2 hereof are complied with4(b) hereof, but shall neither the Company nor the Rights Agent have no any liability to any holder of Right Certificates Rights or any other Person as a result of its the Company’s failure to make any determinations determination with respect to an Acquiring Person or any Affiliates its Related Persons or Associates of an Acquiring Person or any transferee of any of them transferees hereunder.
7.6 (f) Notwithstanding anything in this Agreement or any Rights Certificate to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake take any action with respect to a registered holder of Rights upon the occurrence of any purported transfer or exercise as set forth in this Section 7 by such registered holder unless such registered holder shall have has (ai) properly completed and signed duly executed the certificate contained in following the form of election to purchase set forth on the reverse side of the Right Rights Certificate surrendered for such exercise exercise, and (bii) provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) of the Rights represented by such Rights Certificate or Affiliates or Associates Related Persons thereof as the Company or the Rights Agent reasonably requests.
(g) Except for those provisions herein that expressly survive the termination of this Agreement, this Agreement shall reasonably requestterminate upon the earlier of the Expiration Date and such time as all outstanding Rights have been exercised, redeemed or exchanged hereunder.
Appears in 1 contract
Exercise of Rights; Exercise Price; Expiration Date of Rights. 7.1 (a) Subject to Section 7.5 hereof7(e), the registered holder of any Right Rights Certificate may exercise the Rights evidenced thereby (except as otherwise provided hereinherein including, without limitation, in the restrictions on exercisability set forth in Sections 9(c), 11(a)(iii) and 23(a)), in whole or in part part, at any time after the Distribution Date upon surrender of the Right Rights Certificate, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, to the Rights Agent at the office or offices of the Rights Agent designated for such purpose, together with payment of the aggregate Exercise Price for the total number of each one one-thousandths thousandth of a share of Preferred Stock of the Company (or Common Stock of the Company, other securities, cash or other assets, as the case may be) as to which such surrendered the Rights are then exercised, at or prior to before the earlier earliest of (ai) the Close of Business on the tenth anniversary of the date of this Agreement November 19, 2021 (the "“Final Expiration Date"”), ; (bii) the time at which the Rights are redeemed as provided in pursuant to Section 23 hereof or (cthe “Redemption Date”); (iii) the time at which such the Rights are exchanged as provided pursuant to Section 24 (the “Exchange Date”); or (iv) the closing of any merger or other acquisition transaction involving the Company pursuant to an agreement of the type described in Section 24 hereof 1(i)(ii)(A)(4) and Section 13(f) at which time the Rights are terminated; (the earliest of (ai), (bii) or (ciii) and (iv) being herein referred to as the "“Expiration Date"”). Except as set forth in Section 7.5 hereof and notwithstanding any other provision of this Agreement, any Person who prior .
(b) Each Right shall entitle the registered holder thereof to the Distribution Date becomes a record holder of shares of Common Stock of the Company may exercise all of the rights purchase one one-thousandth of a registered holder share of a Right Certificate with respect to the Rights associated with such shares of Common Stock of the Company in accordance with the provisions of this Agreement, as of the date such Person becomes a record holder of shares of Common Preferred Stock of the Company.
7.2 . The Exercise Price for each one one-thousandth of a share of Preferred Stock of the Company pursuant to the exercise of a Right initially shall initially be one hundred dollars ($100)25.00, which shall be subject to adjustment from time to time as provided in Section Sections 11 and Section 13 hereof 13, and shall be payable in lawful money of the United States of America in accordance with paragraph (c) of this Section 7.3 below7.
7.3 As promptly as practicable following the Distribution Date, the Company shall deposit with a corporation, trust, bank or similar institution in good standing organized under the laws of the United States or any State of the United States, which is authorized under such laws to exercise corporate trust or stock transfer powers and is subject to supervision or examination by a federal or state authority (such institution is hereinafter referred to as the "Depositary Agent"), certificates representing the shares of Preferred Stock that may be acquired upon exercise of the Rights and the Company shall cause such Depositary Agent to enter into an agreement pursuant to which the Depositary Agent shall issue receipts representing interests in the shares of Preferred Stock so deposited. c) Upon receipt of a Right Rights Certificate representing exercisable Rights, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, accompanied by payment payment, with respect to each Right so exercised, of the Exercise Price for per one one-thousandth of a share of Preferred Stock (or Common Stock of the shares Company, other securities, cash or other assets, as the case may be) to be purchased and an amount equal to any applicable transfer tax (as determined by the Rights Agent) in cashor charge, or by certified check or bank draft payable to the order of the Company, then the Rights Agent shall, subject to Section 20.11 hereof18(j), thereupon promptly (ai) (A) requisition from any transfer agent of the Depositary Agent (or make available, if the Rights Agent is the Depository Agent) depository receipts or Preferred Stock certificates for the representing such number of one one-thousandths thousandth of a share of Preferred Stock (or fractions of shares that are integral multiples of one one-thousandth of a share of Preferred Stock) as are to be purchased purchased, and the Company hereby irrevocably authorizes the Depositary Agent shall direct its transfer agent to comply with all such requests; or (B) if the Company has elected to deposit the total number of shares of Preferred Stock issuable upon exercise of the Rights hereunder with a depositary agent, requisition from the depositary agent depositary receipts representing such number of one one-thousandth of a share of Preferred Stock as are to be purchased (bin which case certificates for the shares of Preferred Stock represented by such receipts shall be deposited by the transfer agent with the depositary agent), and the Company shall direct the depositary agent to comply with all such requests; (ii) when appropriateif necessary to comply with this Agreement, requisition from the Company the amount of cash, if any, to be paid in lieu of issuance of fractional shares in accordance with Section 14 hereof, 14; (ciii) promptly after receipt of such certificates or such depositary receipts, cause the same to be delivered to or upon the order of the registered holder of such Right Rights Certificate, registered in such name or names as may be designated by such holder holder; and (div) when appropriateif necessary to comply with this Agreement, promptly after receipt promptly thereof, deliver such cash cash, if any, to or upon the order of the registered holder of such Right Rights Certificate. In the event that If the Company is obligated to issue shares of Common Stock or other securities (including Common Stock) of the Company, pay cash or and/or distribute other property assets pursuant to Section 11.1 hereof11(a), the Company will shall make all arrangements necessary so that such shares of Common Stock, other securities, cash or and/or other property assets are available for distribution by the Rights Agent, if and when appropriatenecessary to comply with this Agreement, and until so received, the Rights Agent shall have no duties or obligations with respect to such securities, cash and/or other assets. The payment of the Exercise Price (as such amount may be reduced pursuant to Section 11(a)(iii)) may be made in cash or by certified or bank check or money order payable to the order of the Company, or by wire transfer of immediately available funds to the account of the Company (provided that notice of such wire transfer shall be given by the holder of the related Right to the Rights Agent).
7.4 In case the (d) If a registered holder of any Right Rights Certificate shall exercise less exercises fewer than all the Rights evidenced thereby, a new Right Rights Certificate evidencing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent and delivered to to, or upon the order of, such holder, registered holder of in such Right Certificate name or to his duly authorized assignsnames as designated by such holder, subject to the provisions of Section 14 hereofSections 6 and 14.
7.5 (e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11.1.2 Event or Section 13 Flip-In Event, any Rights beneficially owned Beneficially Owned by (ai) an Acquiring Person or any Associate or Affiliate a Related Person of an Acquiring Person, ; (bii) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring such Related Person) who becomes a transferee after the Acquiring Person becomes such such; or (ciii) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring such Related Person) who becomes a transferee prior to before or concurrently with the Acquiring Person becoming such and who receives such Rights pursuant to either (iA) a transfer (whether or not for consideration) from the Acquiring Person (or any such Related Person) to holders of equity interests in such Acquiring Person (or any such Related Person) or to any Person with whom the Acquiring Person (or any such Related Person) has any continuing written or oral plan, agreement, arrangement or understanding regarding the transferred Rights, the shares of Common Stock of the Company associated with such Rights or the Company, ; or (iiB) a transfer which that the Board of Directors of the Company has determined is in good faith and in its sole discretion to be part of a plan, agreement, arrangement or understanding which that has as a primary purpose or effect the avoidance of this Section 7.57(e), shall be null and void without any further action action, and no any holder of such Rights thereafter shall have any no rights or preferences whatsoever with respect to such Rights, whether under any provision of this Agreement Agreement, the Rights Certificates or otherwiseotherwise (including, without limitation, rights and preferences pursuant to Sections 7, 11, 13, 23 and 24). The Company shall use all its commercially reasonable efforts to ensure that compliance with the provisions of this Section 7.5 7(e) and Section 4.2 hereof are complied with4(b), but shall neither the Company nor the Rights Agent have no any liability to any holder of Right Certificates Rights or any other Person as a result of its the Company’s failure to make any determinations determination with respect to an Acquiring Person or any Affiliates its Related Persons or Associates of an Acquiring Person or any transferee of any of them transferees hereunder.
7.6 (f) Notwithstanding anything in this Agreement or any Rights Certificate to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake take any action with respect to a registered holder of Rights upon the occurrence of any purported transfer or exercise as set forth in this Section 7 by such registered holder unless such registered holder shall have has (ai) properly completed and signed duly executed the certificate contained in following the form of election to purchase set forth on the reverse side of the Right Rights Certificate surrendered for such exercise and (bii) provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) of the Rights represented by such Rights Certificate or Affiliates or Associates Related Persons thereof as the Company shall or the Rights Agent reasonably requestrequests.
Appears in 1 contract
Exercise of Rights; Exercise Price; Expiration Date of Rights. 7.1 (a) Subject to Section 7.5 7(e) hereof, the registered holder of any Right Rights Certificate may exercise the Rights evidenced thereby (except as otherwise provided hereinherein including, without limitation, in the restrictions on exercisability set forth in Sections 9(c), 11(a)(iii) and 23(a) hereof) in whole or in part at any time after the Distribution Date upon surrender of the Right Rights Certificate, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, to the Rights Agent at the office or offices of the Rights Agent designated for such purpose, together with payment of the aggregate Exercise Price for the total number of each one one-thousandths thousandth of a share of Preferred Stock (or Common Stock, other securities, cash or other assets, as the case may be) as to which such surrendered the Rights are then exercised, at or exercised prior to the earlier earliest of (ai) the Close of Business on July 1, 2019 or such later date as may be established by the tenth anniversary Board prior to the expiration of the date Rights as long as the extension is submitted to the stockholders of this Agreement the Company for ratification at the next annual meeting of stockholders succeeding such extension (the "“Final Expiration Date"”), ; (bii) the time at which the Rights are redeemed as provided in pursuant to Section 23 hereof or (cthe “Redemption Date”); (iii) the time at which such the Rights are exchanged as provided in pursuant to Section 24 hereof (the “Exchange Date”); (iv) the closing of any merger or other acquisition transaction involving the Company pursuant to an agreement of the type described in Section 13(f) at which time the Rights are terminated; (v) the Close of Business on the first day after the Company’s 2017 annual meeting of stockholders, if Stockholder Approval has not been obtained on or prior to the Close of Business on the first day after the Company’s 2017 annual meeting of stockholders (the “Early Expiration Date”); (vi) the Close of Business on the effective date of the repeal of Section 382 of the Code if the Board determines that this Agreement is no longer necessary or desirable for the preservation of Tax Benefits; and (vii) the Close of Business on the first day of a taxable year of the Company to which the Board determines that no Tax Benefits are available to be carried forward (the earliest of (a), i) – (b) or (cvii) being herein referred to as the "“Expiration Date"”). Except as set forth in Section 7.5 hereof and notwithstanding any other provision of this Agreement, any Person who prior .
(b) Each Right shall entitle the registered holder thereof to the Distribution Date becomes a record holder of shares of Common Stock of the Company may exercise all of the rights purchase one one-thousandth of a registered holder share of a Right Certificate with respect to the Rights associated with such shares of Common Stock of the Company in accordance with the provisions of this Agreement, as of the date such Person becomes a record holder of shares of Common Stock of the Company.
7.2 Preferred Stock. The Exercise Price for each one one-thousandth of a share of Preferred Stock pursuant to the exercise of a Right shall be initially be one hundred dollars ($100)14.40, and shall be subject to adjustment from time to time as provided in Section Sections 11 and Section 13 hereof and shall be payable in lawful money of the United States of America in accordance with paragraph (c) of this Section 7.3 below7.
7.3 As promptly as practicable following the Distribution Date, the Company shall deposit with a corporation, trust, bank or similar institution in good standing organized under the laws of the United States or any State of the United States, which is authorized under such laws to exercise corporate trust or stock transfer powers and is subject to supervision or examination by a federal or state authority (such institution is hereinafter referred to as the "Depositary Agent"), certificates representing the shares of Preferred Stock that may be acquired upon exercise of the Rights and the Company shall cause such Depositary Agent to enter into an agreement pursuant to which the Depositary Agent shall issue receipts representing interests in the shares of Preferred Stock so deposited. c) Upon receipt of a Right Rights Certificate representing exercisable Rights, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, accompanied by payment payment, with respect to each Right so exercised, of the Exercise Price for per one one-thousandth of a share of Preferred Stock (or Common Stock, other securities, cash or other assets, as the shares case may be) to be purchased and an amount equal to any applicable transfer tax (as determined by the Rights Agent) in cashor governmental charge, or by certified check or bank draft payable to the order of the Company, then the Rights Agent shall, subject to Section 20.11 18(j) hereof, thereupon promptly (ai) (A) requisition from any transfer agent of the Depositary Agent (or make available, if the Rights Agent is the Depository Agent) depository receipts or Preferred Stock certificates for the representing such number of one one-thousandths of a share of Preferred Stock (or fractions of shares that are integral multiples of one one-thousandth of a share of Preferred Stock) as are to be purchased and the Company hereby irrevocably authorizes the Depositary Agent shall direct its transfer agent to comply with all such requests; or (B) if the Company has elected to deposit the total number of shares of Preferred Stock issuable upon exercise of the Rights hereunder with a depositary agent, requisition from the depositary agent depositary receipts representing such number of one one-thousandths of a share of Preferred Stock as are to be purchased (bin which case certificates for the shares of Preferred Stock represented by such receipts shall be deposited by the transfer agent with the depositary agent), and the Company shall direct the depositary to comply with all such requests; (ii) when appropriateif necessary to comply with this Agreement, requisition from the Company the amount of cash, if any, to be paid in lieu of issuance of fractional shares in accordance with Section 14 hereof, ; (ciii) promptly after receipt of such certificates or such depositary receipts, cause the same to be delivered to or upon the order of the registered holder of such Right Rights Certificate, registered in such name or names as may be designated by such holder holder; and (div) when appropriateif necessary to comply with this Agreement, after receipt promptly thereof, deliver such cash cash, if any, to or upon the order of the registered holder of such Right Rights Certificate. In the event that the Company is obligated to issue Common Stock or other securities (including Common Stock) of the Company, pay cash or and/or distribute other property assets pursuant to Section 11.1 11(a) hereof, the Company will shall make all arrangements necessary so that such Common Stock, other securities, cash or and/or other property assets are available for distribution by the Rights Agent, if and when appropriatenecessary to comply with this Agreement, and until so received, the Rights Agent shall have no duties or obligations with respect to such securities, cash and/or other assets. The payment of the Exercise Price (as such amount may be reduced pursuant to Section 11(a)(iii) hereof) may be made in cash or by certified or bank check or money order payable to the order of the Company, or by wire transfer of immediately available funds to the account of the Company (provided that notice of such wire transfer shall be given by the holder of the related Right to the Rights Agent).
7.4 (d) In case the event a registered holder of any Right Rights Certificate shall exercise exercises less than all the Rights evidenced thereby, a new Right Rights Certificate evidencing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent and delivered to to, or upon the order of, such holder, registered holder of in such Right Certificate name or to his duly authorized assignsnames as designated by such holder, subject to the provisions of Section Sections 6 and 14 hereof.
7.5 (e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11.1.2 Event or Section 13 Flip-In Event, any Rights beneficially owned Beneficially Owned by (ai) an Acquiring Person or any Associate or Affiliate a Related Person of an Acquiring Person, ; (bii) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring such Related Person) who becomes a transferee after the Acquiring Person becomes such such; or (ciii) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring such Related Person) who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and who receives such Rights pursuant to either (iA) a transfer (whether or not for consideration) from the Acquiring Person (or any such Related Person) to holders of equity interests in such Acquiring Person (or any such Related Person) or to any Person with whom the Acquiring Person (or any such Related Person) has any continuing written or oral plan, agreement, arrangement or understanding regarding the transferred Rights, the shares of Common Stock of the Company associated with such Rights or the Company, ; or (iiB) a transfer which that the Board of Directors of the Company has determined is in good faith to be part of a plan, agreement, arrangement or understanding which that has as a primary purpose or effect the avoidance of this Section 7.57(e), shall be null and void without any further action action, and no any holder of such Rights thereafter shall have any no rights or preferences whatsoever with respect to such Rights, whether under any provision of this Agreement Agreement, the Rights Certificates or otherwiseotherwise (including, without limitation, rights and preferences pursuant to Sections 7, 11, 13, 23 and 24 hereof). The Company shall use all commercially reasonable efforts to ensure that compliance with the provisions of this Section 7.5 7(e) and Section 4.2 hereof are complied with4(b) hereof, but shall neither the Company nor the Rights Agent have no any liability to any holder of Right Certificates Rights or any other Person as a result of its the Company’s failure to make any determinations determination with respect to an Acquiring Person or any Affiliates its Related Persons or Associates of an Acquiring Person or any transferee of any of them transferees hereunder.
7.6 (f) Notwithstanding anything in this Agreement or any Rights Certificate to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake take any action with respect to a registered holder of Rights upon the occurrence of any purported transfer or exercise as set forth in this Section 7 by such registered holder unless such registered holder shall have has (ai) properly completed and signed duly executed the certificate contained in following the form of election to purchase set forth on the reverse side of the Right Rights Certificate surrendered for such exercise exercise, and (bii) provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) of the Rights represented by such Rights Certificate or Affiliates or Associates Related Persons thereof as the Company or the Rights Agent reasonably requests.
(g) Except for those provisions herein that expressly survive the termination of this Agreement, this Agreement shall reasonably requestterminate upon the earlier of the Expiration Date and such time as all outstanding Rights have been exercised, redeemed or exchanged hereunder.
Appears in 1 contract
Exercise of Rights; Exercise Price; Expiration Date of Rights. 7.1 (a) Subject to Section 7.5 7(e) hereof, the registered holder of any Right Rights Certificate may exercise the Rights evidenced thereby (except as otherwise provided hereinherein including, without limitation, in the restrictions on exercisability set forth in Sections 9(c), 11(a)(iii) and 23(a) hereof) in whole or in part at any time after the Distribution Date upon surrender of the Right Rights Certificate, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, to the Rights Agent at the office or offices of the Rights Agent designated for such purpose, together with payment of the aggregate Exercise Price for the total number of each one one-thousandths thousandth of a share of Preferred Stock (or Common Stock, other securities, cash or other assets, as the case may be) as to which such surrendered the Rights are then exercised, at or exercised prior to the earlier earliest of (ai) the Close of Business on August 1, 2021 or such later date as may be established by the tenth anniversary Board prior to the expiration of the date Rights as long as the extension is submitted to the stockholders of this Agreement the Company for ratification at the next annual meeting of stockholders succeeding such extension (the "“Final Expiration Date"”), ; (bii) the time at which the Rights are redeemed as provided in pursuant to Section 23 hereof or (cthe “Redemption Date”); (iii) the time at which such the Rights are exchanged as provided in pursuant to Section 24 hereof (the “Exchange Date”); (iv) the closing of any merger or other acquisition transaction involving the Company pursuant to an agreement of the type described in Section 13(f) at which time the Rights are terminated; (v) the Close of Business on the first day after the Company’s 2020 annual meeting of stockholders, if Stockholder Approval has not been obtained at such meeting (the “Early Expiration Date”); (vi) the Close of Business on the effective date of the repeal of Section 382 of the Code if the Board determines that this Agreement is no longer necessary or desirable for the preservation of Tax Benefits; and (vii) the Close of Business on the first day of a taxable year of the Company to which the Board determines that no Tax Benefits are available to be carried forward (the earliest of (a), i) – (b) or (cvii) being herein referred to as the "“Expiration Date"”). Except as set forth in Section 7.5 hereof and notwithstanding any other provision of this Agreement, any Person who prior .
(b) Each Right shall entitle the registered holder thereof to the Distribution Date becomes a record holder of shares of Common Stock of the Company may exercise all of the rights purchase one one-thousandth of a registered holder share of a Right Certificate with respect to the Rights associated with such shares of Common Stock of the Company in accordance with the provisions of this Agreement, as of the date such Person becomes a record holder of shares of Common Stock of the Company.
7.2 Preferred Stock. The Exercise Price for each one one-thousandth of a share of Preferred Stock pursuant to the exercise of a Right shall be initially be one hundred dollars ($100)33.72, and shall be subject to adjustment from time to time as provided in Section Sections 11 and Section 13 hereof and shall be payable in lawful money of the United States of America in accordance with paragraph (c) of this Section 7.3 below7.
7.3 As promptly as practicable following the Distribution Date, the Company shall deposit with a corporation, trust, bank or similar institution in good standing organized under the laws of the United States or any State of the United States, which is authorized under such laws to exercise corporate trust or stock transfer powers and is subject to supervision or examination by a federal or state authority (such institution is hereinafter referred to as the "Depositary Agent"), certificates representing the shares of Preferred Stock that may be acquired upon exercise of the Rights and the Company shall cause such Depositary Agent to enter into an agreement pursuant to which the Depositary Agent shall issue receipts representing interests in the shares of Preferred Stock so deposited. c) Upon receipt of a Right Rights Certificate representing exercisable Rights, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, accompanied by payment payment, with respect to each Right so exercised, of the Exercise Price for per one one-thousandth of a share of Preferred Stock (or Common Stock, other securities, cash or other assets, as the shares case may be) to be purchased and an amount equal to any applicable transfer tax (as determined by the Rights Agent) in cashor governmental charge, or by certified check or bank draft payable to the order of the Company, then the Rights Agent shall, subject to Section 20.11 18(j) hereof, thereupon promptly (ai) (A) requisition from any transfer agent of the Depositary Agent (or make available, if the Rights Agent is the Depository Agent) depository receipts or Preferred Stock certificates for the representing such number of one one-thousandths of a share of Preferred Stock (or fractions of shares that are integral multiples of one one-thousandth of a share of Preferred Stock) as are to be purchased and the Company hereby irrevocably authorizes the Depositary Agent shall direct its transfer agent to comply with all such requests; or (B) if the Company has elected to deposit the total number of shares of Preferred Stock issuable upon exercise of the Rights hereunder with a depositary agent, requisition from the depositary agent depositary receipts representing such number of one one-thousandths of a share of Preferred Stock as are to be purchased (bin which case certificates for the shares of Preferred Stock represented by such receipts shall be deposited by the transfer agent with the depositary agent), and the Company shall direct the depositary to comply with all such requests; (ii) when appropriateif necessary to comply with this Agreement, requisition from the Company the amount of cash, if any, to be paid in lieu of issuance of fractional shares in accordance with Section 14 hereof, ; (ciii) promptly after receipt of such certificates or such depositary receipts, cause the same to be delivered to or upon the order of the registered holder of such Right Rights Certificate, registered in such name or names as may be designated by such holder holder; and (div) when appropriateif necessary to comply with this Agreement, after receipt promptly thereof, deliver such cash cash, if any, to or upon the order of the registered holder of such Right Rights Certificate. In the event that the Company is obligated to issue Common Stock or other securities (including Common Stock) of the Company, pay cash or and/or distribute other property assets pursuant to Section 11.1 11(a) hereof, the Company will shall make all arrangements necessary so that such Common Stock, other securities, cash or and/or other property assets are available for distribution by the Rights Agent, if and when appropriatenecessary to comply with this Agreement, and until so received, the Rights Agent shall have no duties or obligations with respect to such securities, cash and/or other assets. The payment of the Exercise Price (as such amount may be reduced pursuant to Section 11(a)(iii) hereof) may be made in cash or by certified or bank check or money order payable to the order of the Company, or by wire transfer of immediately available funds to the account of the Company (provided that notice of such wire transfer shall be given by the holder of the related Right to the Rights Agent).
7.4 (d) In case the event a registered holder of any Right Rights Certificate shall exercise exercises less than all the Rights evidenced thereby, a new Right Rights Certificate evidencing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent and delivered to to, or upon the order of, such holder, registered holder of in such Right Certificate name or to his duly authorized assignsnames as designated by such holder, subject to the provisions of Section Sections 6 and 14 hereof.
7.5 (e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11.1.2 Event or Section 13 Flip-In Event, any Rights beneficially owned Beneficially Owned by (ai) an Acquiring Person or any Associate or Affiliate a Related Person of an Acquiring Person, ; (bii) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring such Related Person) who becomes a transferee after the Acquiring Person becomes such such; or (ciii) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring such Related Person) who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and who receives such Rights pursuant to either (iA) a transfer (whether or not for consideration) from the Acquiring Person (or any such Related Person) to holders of equity interests in such Acquiring Person (or any such Related Person) or to any Person with whom the Acquiring Person (or any such Related Person) has any continuing written or oral plan, agreement, arrangement or understanding regarding the transferred Rights, the shares of Common Stock of the Company associated with such Rights or the Company, ; or (iiB) a transfer which that the Board of Directors of the Company has determined is in good faith to be part of a plan, agreement, arrangement or understanding which that has as a primary purpose or effect the avoidance of this Section 7.57(e), shall be null and void without any further action action, and no any holder of such Rights thereafter shall have any no rights or preferences whatsoever with respect to such Rights, whether under any provision of this Agreement Agreement, the Rights Certificates or otherwiseotherwise (including, without limitation, rights and preferences pursuant to Sections 7, 11, 13, 23 and 24 hereof). The Company shall use all commercially reasonable efforts to ensure that compliance with the provisions of this Section 7.5 7(e) and Section 4.2 hereof are complied with4(b) hereof, but shall neither the Company nor the Rights Agent have no any liability to any holder of Right Certificates Rights or any other Person as a result of its the Company’s failure to make any determinations determination with respect to an Acquiring Person or any Affiliates its Related Persons or Associates of an Acquiring Person or any transferee of any of them transferees hereunder.
7.6 (f) Notwithstanding anything in this Agreement or any Rights Certificate to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake take any action with respect to a registered holder of Rights upon the occurrence of any purported transfer or exercise as set forth in this Section 7 by such registered holder unless such registered holder shall have has (ai) properly completed and signed duly executed the certificate contained in following the form of election to purchase set forth on the reverse side of the Right Rights Certificate surrendered for such exercise exercise, and (bii) provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) of the Rights represented by such Rights Certificate or Affiliates or Associates Related Persons thereof as the Company or the Rights Agent reasonably requests.
(g) Except for those provisions herein that expressly survive the termination of this Agreement, this Agreement shall reasonably requestterminate upon the earlier of the Expiration Date and such time as all outstanding Rights have been exercised, redeemed or exchanged hereunder.
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Exercise of Rights; Exercise Price; Expiration Date of Rights. 7.1 (a) Subject to Section 7.5 7(e) hereof, the registered holder of any Right Rights Certificate may exercise the Rights evidenced thereby (except as otherwise provided hereinherein including, without limitation, in the restrictions on exercisability set forth in Sections 9(c), 11(a)(iii) and 23(a) hereof) in whole or in part at any time after the Distribution Date upon surrender of the Right Rights Certificate, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, to the Rights Agent at the office or offices of the Rights Agent designated for such purpose, together with payment of the aggregate Exercise Price for the total number of each one one-thousandths thousandth of a share of Preferred Stock (or Common Stock, other securities, cash or other assets, as the case may be) as to which such surrendered the Rights are then exercised, at or exercised prior to the earlier earliest of (ai) the Close of Business on May 6, 2022 or such later date as may be established by the tenth anniversary Board prior to the expiration of the date Rights as long as the extension is submitted to the stockholders of this Agreement the Company for ratification at the next annual meeting of stockholders succeeding such extension (the "“Final Expiration Date"”), ; (bii) the time at which the Rights are redeemed as provided in pursuant to Section 23 hereof or (cthe “Redemption Date”); (iii) the time at which such the Rights are exchanged as provided in pursuant to Section 24 hereof (the “Exchange Date”); (iv) the closing of any merger or other acquisition transaction involving the Company pursuant to an agreement of the type described in Section 13(f) at which time the Rights are terminated; (v) the Close of Business on the first day after the Company’s 2019 annual meeting of stockholders, if Stockholder Approval has not been obtained on or prior to the Close of Business on the first day after the Company’s 2019 annual meeting of stockholders (the “Early Expiration Date”); (vi) the Close of Business on the effective date of the repeal of Section 382 of the Code if the Board determines that this Agreement is no longer necessary or desirable for the preservation of Tax Benefits; and (vii) the Close of Business on the first day of a taxable year of the Company to which the Board determines that no Tax Benefits are available to be carried forward (the earliest of (a), i) — (b) or (cvii) being herein referred to as the "“Expiration Date"”). Except as set forth in Section 7.5 hereof and notwithstanding any other provision of this Agreement, any Person who prior .
(b) Each Right shall entitle the registered holder thereof to the Distribution Date becomes a record holder of shares of Common Stock of the Company may exercise all of the rights purchase one one-thousandth of a registered holder share of a Right Certificate with respect to the Rights associated with such shares of Common Stock of the Company in accordance with the provisions of this Agreement, as of the date such Person becomes a record holder of shares of Common Stock of the Company.
7.2 Preferred Stock. The Exercise Price for each one one-thousandth of a share of Preferred Stock pursuant to the exercise of a Right shall be initially be one hundred dollars ($100)5.22, and shall be subject to adjustment from time to time as provided in Section Sections 11 and Section 13 hereof and shall be payable in lawful money of the United States of America in accordance with paragraph (c) of this Section 7.3 below7.
7.3 As promptly as practicable following the Distribution Date, the Company shall deposit with a corporation, trust, bank or similar institution in good standing organized under the laws of the United States or any State of the United States, which is authorized under such laws to exercise corporate trust or stock transfer powers and is subject to supervision or examination by a federal or state authority (such institution is hereinafter referred to as the "Depositary Agent"), certificates representing the shares of Preferred Stock that may be acquired upon exercise of the Rights and the Company shall cause such Depositary Agent to enter into an agreement pursuant to which the Depositary Agent shall issue receipts representing interests in the shares of Preferred Stock so deposited. c) Upon receipt of a Right Rights Certificate representing exercisable Rights, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, accompanied by payment payment, with respect to each Right so exercised, of the Exercise Price for per one one-thousandth of a share of Preferred Stock (or Common Stock, other securities, cash or other assets, as the shares case may be) to be purchased and an amount equal to any applicable transfer tax (as determined by the Rights Agent) in cashor governmental charge, or by certified check or bank draft payable to the order of the Company, then the Rights Agent shall, subject to Section 20.11 18(j) hereof, thereupon promptly (ai) (A) requisition from any transfer agent of the Depositary Agent (or make available, if the Rights Agent is the Depository Agent) depository receipts or Preferred Stock certificates for the representing such number of one one-thousandths of a share of Preferred Stock (or fractions of shares that are integral multiples of one one-thousandth of a share of Preferred Stock) as are to be purchased and the Company hereby irrevocably authorizes the Depositary Agent shall direct its transfer agent to comply with all such requests; or (B) if the Company has elected to deposit the total number of shares of Preferred Stock issuable upon exercise of the Rights hereunder with a depositary agent, requisition from the depositary agent depositary receipts representing such number of one one-thousandths of a share of Preferred Stock as are to be purchased (bin which case certificates for the shares of Preferred Stock represented by such receipts shall be deposited by the transfer agent with the depositary agent), and the Company shall direct the depositary to comply with all such requests; (ii) when appropriateif necessary to comply with this Agreement, requisition from the Company the amount of cash, if any, to be paid in lieu of issuance of fractional shares in accordance with Section 14 hereof, ; (ciii) promptly after receipt of such certificates or such depositary receipts, cause the same to be delivered to or upon the order of the registered holder of such Right Rights Certificate, registered in such name or names as may be designated by such holder holder; and (div) when appropriateif necessary to comply with this Agreement, after receipt promptly thereof, deliver such cash cash, if any, to or upon the order of the registered holder of such Right Rights Certificate. In the event that the Company is obligated to issue Common Stock or other securities (including Common Stock) of the Company, pay cash or and/or distribute other property assets pursuant to Section 11.1 11(a) hereof, the Company will shall make all arrangements necessary so that such Common Stock, other securities, cash or and/or other property assets are available for distribution by the Rights Agent, if and when appropriatenecessary to comply with this Agreement, and until so received, the Rights Agent shall have no duties or obligations with respect to such securities, cash and/or other assets. The payment of the Exercise Price (as such amount may be reduced pursuant to Section 11(a)(iii) hereof) may be made in cash or by certified or bank check or money order payable to the order of the Company, or by wire transfer of immediately available funds to the account of the Company (provided that notice of such wire transfer shall be given by the holder of the related Right to the Rights Agent).
7.4 (d) In case the event a registered holder of any Right Rights Certificate shall exercise exercises less than all the Rights evidenced thereby, a new Right Rights Certificate evidencing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent and delivered to to, or upon the order of, such holder, registered holder of in such Right Certificate name or to his duly authorized assignsnames as designated by such holder, subject to the provisions of Section Sections 6 and 14 hereof.
7.5 (e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11.1.2 Event or Section 13 Flip-In Event, any Rights beneficially owned Beneficially Owned by (ai) an Acquiring Person or any Associate or Affiliate a Related Person of an Acquiring Person, ; (bii) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring such Related Person) who becomes a transferee after the Acquiring Person becomes such such; or (ciii) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring such Related Person) who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and who receives such Rights pursuant to either (iA) a transfer (whether or not for consideration) from the Acquiring Person (or any such Related Person) to holders of equity interests in such Acquiring Person (or any such Related Person) or to any Person with whom the Acquiring Person (or any such Related Person) has any continuing written or oral plan, agreement, arrangement or understanding regarding the transferred Rights, the shares of Common Stock of the Company associated with such Rights or the Company, ; or (iiB) a transfer which that the Board of Directors of the Company has determined is in good faith to be part of a plan, agreement, arrangement or understanding which that has as a primary purpose or effect the avoidance of this Section 7.57(e), shall be null and void without any further action action, and no any holder of such Rights thereafter shall have any no rights or preferences whatsoever with respect to such Rights, whether under any provision of this Agreement Agreement, the Rights Certificates or otherwiseotherwise (including, without limitation, rights and preferences pursuant to Sections 7, 11, 13, 23 and 24 hereof). The Company shall use all commercially reasonable efforts to ensure that compliance with the provisions of this Section 7.5 7(e) and Section 4.2 hereof are complied with4(b) hereof, but shall neither the Company nor the Rights Agent have no any liability to any holder of Right Certificates Rights or any other Person as a result of its the Company’s failure to make any determinations determination with respect to an Acquiring Person or any Affiliates its Related Persons or Associates of an Acquiring Person or any transferee of any of them transferees hereunder.
7.6 (f) Notwithstanding anything in this Agreement or any Rights Certificate to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake take any action with respect to a registered holder of Rights upon the occurrence of any purported transfer or exercise as set forth in this Section 7 by such registered holder unless such registered holder shall have has (ai) properly completed and signed duly executed the certificate contained in following the form of election to purchase set forth on the reverse side of the Right Rights Certificate surrendered for such exercise exercise, and (bii) provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) of the Rights represented by such Rights Certificate or Affiliates or Associates Related Persons thereof as the Company or the Rights Agent reasonably requests.
(g) Except for those provisions herein that expressly survive the termination of this Agreement, this Agreement shall reasonably requestterminate upon the earlier of the Expiration Date and such time as all outstanding Rights have been exercised, redeemed or exchanged hereunder.
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