Warrant Agent. The Company hereby appoints the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, upon the following terms and conditions by all of which the Company and every Warrant Holder, by acceptance of a Warrant, shall be bound: (a) Statements contained in this Agreement and in the Warrant Certificates shall be taken as statements of the Company. The Warrant Agent assumes responsibility hereunder only for the correctness of any statement which describes the Warrant Agent and/or for action taken or to be taken by the Warrant Agent. (b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant Certificates. (c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel. (d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties. (e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement for the services rendered by the Warrant Agent. The Company shall also reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or nature incurred by the Warrant Agent in the performance of this Agreement. (f) The Company shall indemnify the Warrant Agent and hold it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred in connection with its performance of this Agreement, except as a result of the Warrant Agent's negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage. (g) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates. (h) The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Warrants or other securities of the Company, or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant Agent. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
Appears in 8 contracts
Sources: Warrant Agreement (Mentor Capital Consultants Inc), Warrant Agreement (Mentor Capital Consultants Inc), Warrant Agreement (Mentor Capital Consultants Inc)
Warrant Agent. a. The Company hereby appoints the Warrant Agent to act as the agent of the Company, Company in accordance with this Agreement and the Warrant Agent hereby accepts such appointment, .
b. The Warrant Agent undertakes the duties and obligations imposed by this Agreement upon the following terms and conditions by all of which the Company and every Warrant Holder, by acceptance of a Warrantany Warrants, shall be bound:
(a1) Statements The statements contained in this Agreement and in the Warrant Certificates shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by the Warrant Agentit.
(b2) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c3) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d4) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon on any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e5) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent in the execution of this Agreement including fees for exercise of the Warrants, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the performance execution of this Agreement.
(f) The Company shall Agreement and to indemnify the Warrant Agent and hold save it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred for anything done or omitted by the Warrant Agent in connection with its performance the execution of this Agreement, Agreement except as a result of the Warrant Agent's negligence negligence, bad faith or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damagewillful misconduct.
(g6) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(h7) The Warrant Agent and any shareholderstockholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(8) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof.
Appears in 5 contracts
Sources: Series B Warrant Agreement (Good Times Restaurants Inc), Warrant Agreement (Good Times Restaurants Inc), Series B Warrant Agreement (Good Times Restaurants Inc)
Warrant Agent. The Company hereby appoints Warrant Agent undertakes the duties and obligations imposed by this Agreement (and no implied duties or obligations shall be read into this Agreement against the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, Agent) upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it of its own selection (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided . The Warrant Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or through agents or attorneys and the Warrant Agent shall have exercised reasonable not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care in the selection and continued employment of such counselby it hereunder.
(d) The Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Warrant Agent and conforming to the requirements of this Agreement. The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument (whether in its original or facsimile form) believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement such compensation for the all services rendered by the Warrant Agent. The Agent in the administration and execution of this Agreement as the Company and the Warrant Agent shall also agree in writing to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the performance execution of this Agreement.
Agreement (fincluding fees and expenses of its counsel) The Company shall and to indemnify the Warrant Agent (and hold any predecessor Warrant Agent) and save it harmless against any and all claims (whether asserted by the Company, a holder or any other person), damages, losses, expenses (including taxes other than taxes based on the income of the Warrant Agent), liabilities, including judgments, costs and counsel feesfees and expenses, incurred for anything done or omitted by the Warrant Agent in connection with its performance the execution of this Agreement, Agreement except as a result of the Warrant Agent's its negligence or bad faithwillful misconduct. In no case The provisions of this Section 15(e) shall survive the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised expiration of the likelihood Warrants and the termination of such loss or damagethis Agreement.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered holders of Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity satisfactory to it for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own negligence or willful misconduct. The Warrant Agent shall not be liable for any error of judgment made in good faith by it, unless it shall be proved that the Warrant Agent was negligent in ascertaining the pertinent facts. Notwithstanding anything in this Agreement to the contrary, in no event shall the Warrant Agent be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of the loss or damage and regardless of the form of the action.
(i) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of any Warrant Certificate to make or cause to be made any adjustment of the Exercise Price or number of the Warrant Shares or other securities or property deliverable as provided in this Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto.
(j) Notwithstanding anything in this Agreement to the contrary, neither the Company nor the Warrant Agent shall have any liability to any holder of a Warrant Certificate or other Person as a result of its inability to perform any of its obligations under this Agreement by reason of any preliminary or permanent injunction or other order, decree or ruling issued by a court of competent jurisdiction or by a governmental, regulatory or administrative agency or commission, or any statute, rule, regulation or executive order promulgated or enacted by any governmental authority prohibiting or otherwise restraining performance of such obligation; provided that (i) the Company must use its reasonable best efforts to have any such order, decree or ruling lifted or otherwise overturned as soon as possible and (ii) nothing in this Section 15(j) shall affect the Company’s obligation under Section 6(d) to use its best efforts to have a registration statement in effect covering the Warrant Shares issuable upon exercise of the Warrants and to maintain a current prospectus relating to those Warrant Shares.
(k) Any application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent under this Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Warrant Agent shall not be liable for any action taken by, or omission of, the Warrant Agent in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any officer of the Company actually receives such application, unless any such officer shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Warrant Agent shall have received written instructions in response to such application specifying the action to be taken or omitted.
(l) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights.
(m) In addition to the foregoing, the Warrant Agent shall be protected and shall incur no liability for, or in respect of, any action taken or omitted by it in connection with its administration of this Agreement if such acts or omissions are not the result of the Warrant Agent’s reckless disregard of its duty, gross negligence or willful misconduct and are in reliance upon (i) the proper execution of the certification concerning beneficial ownership appended to the form of assignment and the form of the election attached hereto unless the Warrant Agent shall have actual knowledge that, as executed, such certification is untrue, or (ii) the non-execution of such certification including, without limitation, any refusal to honor any otherwise permissible assignment or election by reason of such non-execution.
Appears in 5 contracts
Sources: Warrant Agreement (Great American Group, Inc.), Warrant Agreement (Hanover-STC Acquisition Corp.), Warrant Agreement (GSC Acquisition Co)
Warrant Agent. (a) The Company hereby appoints the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, upon the following terms and conditions by all of which the Company and every Warrant Holder, by acceptance of a Warrant, shall be bound:
(a) Statements contained in this Agreement and in the Warrant Certificates shall be taken as statements of the Company. The Warrant Agent assumes responsibility hereunder only for the correctness of any statement which describes agree that the Warrant Agent and/or for action taken or to be taken by will serve as an agent of the Warrant AgentCompany as set forth in this Agreement.
(b) The Warrant Agent shall not by any act hereunder be deemed to make any representation as to validity or authorization of the Warrants or the Warrant Certificates (except as to its countersignature thereon) or of any securities or other property delivered upon exercise of any Warrant, or as to the number or kind or amount of securities or other property deliverable upon exercise of any Warrant or the correctness of the representations of the Company made in such certificates that the Warrant Agent receives.
(c) The Warrant Agent shall not have any duty to calculate or determine any required adjustments with respect to the Exercise Price or the kind and amount of securities or other property receivable by Holders upon the exercise of Warrants, nor to determine the accuracy or correctness of any such calculation.
(d) The Warrant Agent shall not (i) be liable for any recital or statement of fact contained herein or in the Warrant Certificates or for any action taken, suffered or omitted by it in good faith in the belief that any Warrant Certificate or any other document or any signature is genuine or properly authorized, (ii) be responsible for any failure of by the Company to comply with any of the Company's covenants its obligations contained in this Agreement or in the Warrant Certificates, (iii) be liable for any act or omission in connection with this Agreement except for its own gross negligence or willful misconduct or (iv) have any responsibility to determine whether a transfer of a Warrant complies with applicable securities laws.
(ce) The Warrant Agent is hereby authorized to accept instructions with respect to the performance of its duties hereunder from the Chief Executive Officer, the President, the Chief Financial Officer, any Vice President, the Treasurer, or the Secretary or any Assistant Secretary of the Company and to apply to any such officer for written instructions (which will then be reasonably promptly given) and the Warrant Agent shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with the instructions of any such officer, except for its own gross negligence or willful misconduct, but in its discretion the Warrant Agent may in lieu thereof accept other evidence of such or may require such further or additional evidence as it may deem reasonable.
(f) The Warrant Agent may exercise any of the rights and powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys, agents or employees, provided reasonable care has been exercised in the selection and in the continued employment of any persons. The Warrant Agent shall not be under any obligation or duty to institute, appear in or defend any action, suit or legal proceeding in respect hereof, unless first indemnified to its satisfaction. The Warrant Agent shall promptly notify the Company in writing of any claim made or action, suit or proceeding instituted against or arising out of or in connection with this Agreement.
(g) The Company will take such action as may reasonably be required by the Warrant Agent in order to enable it to carry out or perform its duties under this Agreement.
(h) The Warrant Agent shall act solely as agent of the Company hereunder. The Warrant Agent shall only be liable for the failure to perform such duties as are specifically set forth herein.
(i) The Warrant Agent may consult at any time with legal counsel satisfactory to it (who may be legal counsel for the Company), and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder in respect of for any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(ej) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement compensation for the all services rendered by the Warrant Agent. The Agent hereunder as the Company shall also and the Warrant Agent may agree from time to time, and to reimburse the Warrant Agent for all expensesreasonable expenses incurred in connection with the execution and administration of this Agreement (including the reasonable compensation and expenses of its counsel), taxes and governmental charges and all other charges of any kind or nature incurred by further agrees to indemnify the Warrant Agent for, and hold it harmless against, any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on its part, arising out of or in connection with the performance acceptance and administration of this Agreement.
(f) The Company shall indemnify the Warrant Agent and hold it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred in connection with its performance of this Agreement, except as a result of the Warrant Agent's negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(gk) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(h) The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent Agent, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or its Affiliates or become pecuniarily interested in any transaction transactions in which the Company or its Affiliates may be interested, or contract with or lend money to the Company, Company or its Affiliates or otherwise act as fully and freely as though it were not the Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entityPerson.
(l) No resignation or removal of the Warrant Agent and no appointment of a successor warrant agent shall become effective until the acceptance of appointment by the successor warrant agent as provided herein. The Warrant Agent may resign its duties and be discharged from all further duties and liability hereunder (except liability arising as a result of the Warrant Agent’s own gross negligence or willful misconduct) after giving written notice to the Company. The Company may remove the Warrant Agent upon written notice, and the Warrant Agent shall thereupon in like manner be discharged from all further duties and liabilities hereunder, except as aforesaid. The Warrant Agent shall, at the Company’s expense, cause to be mailed (by first class mail, postage prepaid) to each Holder of a Warrant at such Holder’s last address as shown on the register of the Company maintained by the Warrant Agent a copy of said notice of resignation or notice of removal, as the case may be. Upon such resignation or removal, the Company shall appoint in writing a new warrant agent. If the Company fails to do so within a period of 30 days after it has been notified in writing of such resignation by the resigning Warrant Agent or after such removal, then the resigning Warrant Agent or the Holder of any Warrant may apply to any court of competent jurisdiction for the appointment of a new warrant agent. After acceptance in writing of such appointment by the new warrant agent, it shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent. Not later than the effective date of any such appointment, the Company shall give notice thereof to the resigning or removed Warrant Agent. Failure to give any notice provided for in this Section 14(l), however, or any defect therein, shall not affect the legality or validity of the resignation of the Warrant Agent or the appointment of a new warrant agent, as the case may be.
(m) Any corporation into which the Warrant Agent or any new warrant agent may be merged or converted or any corporation resulting from any consolidation to which the Warrant Agent or any new warrant agent shall be a party or any corporation to which the Warrant Agent transfers substantially all of its corporate trust business shall be a successor Warrant Agent under this Agreement without any further act, provided that such corporation (i) would be eligible for appointment as successor to the Warrant Agent under the provisions of Section 14(l) or (ii) is a wholly owned subsidiary of the Warrant Agent. Any such successor Warrant Agent shall promptly cause notice of its succession as Warrant Agent to be mailed (by first class mail, postage prepaid) to each Holder in accordance with Section 13.
Appears in 5 contracts
Sources: Warrant Agreement, Warrant Agreement (Gevo, Inc.), Warrant Agreement (Gevo, Inc.)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes only the agent of the Company, duties and the obligations expressly imposed by this Warrant Agent hereby accepts such appointment, Agreement upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The Warrant Agent may rely conclusively and shall be protected in acting upon any order, judgment, instruction, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by or who may be an employee of the Warrant Agent or one of its affiliates), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability and of information therein contained) which is believed by the Warrant Agent, in good faith, to be genuine and to be signed or presented by the proper person or persons as set forth in Section 17(d).
(b) The Warrant Agent shall have no duties, responsibilities or obligations as the Warrant Agent except those which are expressly set forth herein, and in any modification or amendment hereof to which the Warrant Agent has consented in writing, and no duties, responsibilities or obligations shall be implied or inferred.
(c) The statements contained in this Agreement herein and in the Global Warrant Certificates shall be taken as deemed to be statements of the CompanyCompany only. The Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same and shall not be required to verify the same.
(d) Whenever in the performance of its duties under this Warrant Agreement the Warrant Agent and/or for deems it necessary or desirable that any fact or matter be proved or established by the Company prior to taking, suffering or omitting to take any action taken hereunder, such fact or matter may be deemed to be taken conclusively proved and established by a certificate signed by the Company’s Chairman of the Board, Chief Executive Officer, President or any Vice President and delivered to the Warrant Agent; and in reliance upon such certificate, the Warrant Agent shall take any action or omit to take any action authorized under the provisions of this Warrant Agreement. In the event the Warrant Agent reasonably believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, or is uncertain of any action to take hereunder, the Warrant Agent, may, following prior written notice to the Company, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the reasonable satisfaction of the Warrant Agent.
(be) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Warrant Agreement (including, without limitation, any adjustment of the Exercise Price pursuant to Section 12 hereof, the authorization or reservation of shares of Common Stock pursuant to Section 11 hereof, and the due execution and delivery by the Company of this Warrant Agreement or any Global Warrant Certificate) or in the Global Warrant CertificatesCertificates to be complied with by the Company.
(cf) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), Company or an employee of the Warrant Agent) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(dg) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon on any Global Warrant Certificate, Warrant Statement, certificate representing shares of Common Stock, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties. The Warrant Agent shall not be bound by any notice or demand, or any waiver, modification, termination or revision of this Warrant Agreement or any of the terms hereof, unless evidenced by a writing between and signed by, the Company and the Warrant Agent. The Warrant Agent shall not be required to take instructions or directions except those given in accordance with this Warrant Agreement.
(eh) The Warrant Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys, accountants, agents or other experts, and the Warrant Agent will not be answerable or accountable for any act, default, neglect or unintentional misconduct of any such attorneys or agents or for any loss to the Company or the holders of the Warrants resulting from any such act, default, neglect or unintentional misconduct, absent gross negligence, willful misconduct or bad faith (as each is determined by a final non-appealable order of a court of competent jurisdiction) in the selection and continued employment or engagement thereof.
(i) The Warrant Agent will not be under any duty or responsibility to insure compliance with any applicable federal or state securities laws in connection with the issuance, transfer or exchange of Global Warrant Certificates.
(j) The Warrant Agent shall not incur any liability for not performing any act, duty, obligation or responsibility by reason of any occurrence beyond the control of the Warrant Agent (including, without limitation, any act or provision of any present or future law or regulation or governmental authority, any act of God, war, civil disorder or failure of any means of communication).
(k) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent in the preparation, delivery, administration and execution of this Warrant Agreement and the exercise and performance of its duties hereunder, to reimburse the Warrant Agent for all expensesreasonable expenses (including reasonable counsel fees), taxes (including withholding taxes) and governmental charges and all other charges of any kind or and nature actually incurred by the Warrant Agent in the execution, delivery and performance of its responsibilities under this Agreement.
(f) The Company shall Warrant Agreement and to indemnify the Warrant Agent and hold save it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred for anything done or omitted by the Warrant Agent, or any person acting on behalf of the Warrant Agent, in connection with its the execution, delivery and performance of its responsibilities under this Agreement, Warrant Agreement except as a result of the Warrant Agent's negligence its gross negligence, bad faith or bad faith. In no case shall the Warrant Agent be liable for specialwillful misconduct (each as determined by a final, indirect, incidental or consequential loss or damage non-appealable order of any kind whatsoever, even if the Warrant Agent has been advised a court of the likelihood of such loss or damagecompetent jurisdiction).
(gl) The Warrant Agent Agent, shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more holders of Global Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Warrant Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates Warrants or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hm) The Except as otherwise prohibited by applicable law, the Warrant Agent Agent, and any shareholdermember, stockholder, director, officer or employee of the Warrant Agent Agent, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(n) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the express provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Warrant Agreement, except for its own gross negligence, bad faith or willful misconduct (each as determined by a final, non-appealable order of a court of competent jurisdiction); provided that in no event shall the Warrant Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including, without limitation, lost profits). Any liability of the Warrant Agent under this Agreement, except for liability arising out of, or in connection with, the gross negligence, bad faith or willful misconduct (each as determined by a final, non-appealable order of a court of competent jurisdiction) of the Warrant Agent, will be limited to the amount of aggregate fees paid by the Company to the Warrant Agent.
(o) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of any Warrant to make or cause to be made any adjustment of the Exercise Price or number of the shares of Common Stock or other securities or property deliverable as provided in this Warrant Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any shares of Common Stock or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such shares of Common Stock or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto. The Warrant Agent shall not be accountable to confirm or verify the accuracy or necessity of any calculation.
(p) The Company agrees to perform, execute and acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments, and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement.
(q) The Warrant Agent shall have no responsibility or liability with respect to the validity of this Agreement or with respect to the validity or execution of any Warrant (except its countersignature thereof); nor shall it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Warrant; nor shall it be responsible to make or be liable for any adjustments required under any provision hereof, including but not limited to Section 11 hereof, or responsible for the manner, method or amount of any such adjustment or the ascertaining of the existence of facts that would require any such adjustment; nor shall it by act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any shares of Common Stock to be issued pursuant to this Agreement or any Warrant or as to whether any shares of Common Stock will, when issued, be valid and fully paid and nonassessable.
(r) Notwithstanding anything to the contrary contained herein, the Company shall make all determinations with respect to Cashless Exercises, and the Warrant Agent shall have no duty or obligation to investigate or confirm whether the Company determination regarding the number of Shares to be issued in the event of a Cashless Exercise is accurate or correct. Notwithstanding anything to the contrary contained herein, the Warrant Agent shall also have no duty or obligation to investigate or confirm whether any determination of the Exercise Amount under Section 8 is correct or accurate.
(s) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights, except to the extent otherwise expressly set forth herein.
(t) Notwithstanding the foregoing, nothing in this Section 17 shall relieve the Warrant Agent from any liability arising from the Warrant Agent’s transfer of any Warrant without obtaining confirmation from the Company as described in Section 6 hereof.
(u) All rights and obligations contained in this Section 17 and Section 18 hereof shall survive the termination of this Warrant Agreement and the resignation, replacement or removal of the Warrant Agent.
Appears in 4 contracts
Sources: Warrant Agreement, Warrant Agreement (Lear Corp), Warrant Agreement (Lear Corp)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, express duties and the Warrant Agent hereby accepts such appointment, obligations imposed by this Agreement upon the following terms and conditions (and no duties or obligations shall be inferred), by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements and recitals contained in this Agreement herein and in the Warrant Certificates Warrants shall be taken as statements of the Company, and the Warrant Agent assumes no responsibility and shall not be liable for the correctness of any of the same except such as describe the Warrant Agent. The Warrant Agent assumes no responsibility hereunder only for with respect to the correctness distribution of any statement which describes the Warrant Agent and/or for action taken or to be taken by the Warrant AgentWarrants except as herein otherwise expressly provided.
(b) The Warrant Agent has no duty to determine when an adjustment under Article VI should be made, how any such adjustment should be made or what any such adjustment should be. Nor shall the Warrant Agent have any obligation hereunder to determine whether an adjustment event has occurred. The Warrant Agent makes no representation as to the validity or value of any securities or assets issued upon exercise of Warrants. The Warrant Agent shall have no obligation under this Agreement to calculate, confirm, investigate or verify the accuracy of the correctness of, the number of Warrant Shares issuable in connection with any exercise hereunder.
(c) The Warrant Agent shall not be accountable with respect to (i) the validity, value, kind or amount of any Warrant Shares, securities or property which may be issued or delivered at any time upon the exercise of any Warrant or (ii) whether any such Warrant Shares or other securities will, when issued, be validly issued, fully paid and nonassessable; and in each case, makes no representation with respect thereto.
(d) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesWarrants.
(ce) The Warrant Agent may rely on, and will be held harmless, indemnified and protected and shall incur no liability in acting or refraining from acting, upon any resolution, certificate, statement, instrument, instruction, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document from the Company with respect to any matter relating to its acting as Warrant Agent hereunder believed by it to be genuine and to have been signed or presented by the proper Person. The Warrant Agent need not investigate any fact or matter stated in the document. The Warrant Agent, in its discretion, may make further inquiry or investigation into such facts or matters as it sees fit. The Warrant Agent shall not be held to have notice of any change of authority of any Person, until receipt of written notice thereof from the Company.
(f) The Warrant Agent may consult at with legal counsel, and the advice of such counsel or any time with counsel satisfactory Opinion of Counsel will be full and complete authorization and protection to it (who may be counsel for the Company), Warrant Agent and the Warrant Agent shall will incur no liability for or responsibility to the Company or to any Warrant Holder in respect of any action taken, suffered or omitted by it hereunder in good the absence of willful misconduct, bad faith and in accordance with the opinion or the advice gross negligence (each as determined by a final judgment of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment a court of such counsel.
(dcompetent jurisdiction) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement for the services rendered by the Warrant Agent. The Company shall also reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or nature incurred by the Warrant Agent in the performance of this Agreement.
(f) The Company shall indemnify the Warrant Agent and hold it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred in connection with its performance of this Agreement, except as a result of the Warrant Agent's negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damagethereon.
(g) The Warrant Agent shall may act through its attorneys and agents and will not be under no obligation to institute any action, suit responsible for the misconduct or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession negligence of any agent absent gross negligence, bad faith or willful misconduct (each as determined by a final judgment of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery a court of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests may appear, subject to the terms set forth competent jurisdiction) in the Warrant Certificatesappointment of such agent.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the express provisions hereof. No provision of this Agreement shall be construed to relieve the Warrant Agent from liability for its own gross negligence, bad faith or willful misconduct (each as determined by a final judgment of a court of competent jurisdiction).
(i) The Warrant Agent shall not have any shareholderduty or responsibility in the case of the receipt of any written demand from any Holder of Warrants with respect to any action or default by the Company, directorincluding any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.
(j) The Warrant Agent shall not be obligated to expend or risk its own funds or to take any action that it believes would expose or subject it to expense or liability or to a risk of incurring expense or liability, officer unless it has been furnished with assurances of repayment or employee of indemnity satisfactory to it; provided, further, that the Warrant Agent may buyin any event resign pursuant to Section 7.04(i) instead of taking any such action.
(k) The Warrant Agent shall not be liable or responsible for any failure of the Company to comply with any of its obligations relating to any registration statement filed with the Commission or this Agreement, sell including obligations under applicable regulation or deal in law.
(l) The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any Warrants authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of the proceeds of the issue and sale, or exercise, of the Warrants.
(m) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the express provisions hereof (and no duties or obligations shall be inferred or implied). The Warrant Agent shall not assume any obligations or relationship of agency or trust with any of the Warrants owners or holders of the Warrants. The Warrant Agent shall not be charged with knowledge or notice of any fact or circumstance not expressly set forth herein, and shall not be bound by the provisions of any other agreement or document (including, but not limited to, the Purchase Agreement) among the Company and the Holders except this Agreement.
(n) The Warrant Agent may rely on and be fully authorized and protected in acting or failing to act upon (i) any guaranty of signature by an “eligible guarantor institution” that is a member or participant in the Securities Transfer Agents Medallion Program or other securities comparable “signature guarantee program” or insurance program in addition to, or in substitution for, the foregoing; or (ii) any law, act, regulation or any interpretation of the Companysame even though such law, act, or become pecuniarily interested in any transaction in which regulation may thereafter have been altered, changed, amended or repealed.
(o) In the Company may be interested, or contract with or lend money to the Company, or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant Agent. Nothing herein shall preclude event the Warrant Agent from acting believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other capacity communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to Company, any Holder of a Warrant or any other Person for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or for any other legal entityuncertainty to the reasonable satisfaction of Warrant Agent.
(p) The provisions of this Section 7.01, Section 7.02 and Section 7.03 will survive the termination of this Agreement, the exercise or expiration of the Warrants and the resignation, replacement or removal of the Warrant Agent.
Appears in 4 contracts
Sources: Warrant Agreement (McDermott International Inc), Warrant Agreement (McDermott International Inc), Securities Purchase Agreement (McDermott International Inc)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, duties and the Warrant Agent hereby accepts such appointment, obligations imposed by this Agreement upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any Warrant Certificate, certificate of shares of Common Stock, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties. The Warrant Agent shall not be bound by any notice or demand, or any waiver, modification, termination or revision of this Agreement or any of the terms hereof, unless evidenced by a writing between the Company and the Warrant Agent.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent in the execution of this Agreement and the performance of its responsibilities hereunder, to reimburse the Warrant Agent for all expenses, taxes (including withholding taxes) and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the execution, delivery and performance of its responsibilities under this Agreement.
(f) The Company shall Agreement and to indemnify the Warrant Agent and hold save it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred for anything done or omitted by the Warrant Agent in connection with its the execution, delivery and performance of its responsibilities under this Agreement, Agreement except as a result of the Warrant Agent's its gross negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered holders of Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Except as prohibited by law, the Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent Agent, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own gross negligence or bad faith.
(i) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of any Warrant Certificate to make or cause to be made any adjustment of the Exercise Price or number of the Warrant Shares or other securities or property deliverable as provided in this Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto.
(j) In the absence of bad faith on its part, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Warrant Agent and conforming to the requirements of this Warrant Agreement. However, the Warrant Agent shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Agreement.
(k) The Warrant Agent may rely and shall be fully protected in relying upon any document believed by it to be genuine and to have been signed or presented by the proper person.
Appears in 4 contracts
Sources: Warrant Agreement (Color Spot Nurseries Inc), Warrant Agreement (Olympic Financial LTD), Warrant Agreement (Pegasus Communications Corp)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, duties and the Warrant Agent hereby accepts such appointment, obligations imposed by this Agreement upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent in the execution of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the performance execution of this Agreement.
(f) The Company shall Agreement and to indemnify the Warrant Agent and hold save it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred for anything done or omitted by the Warrant Agent in connection with its performance the execution of this Agreement, Agreement except as a result of the Warrant Agent's its negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders registered holders of Warrants shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own negligence or bad faith.
(i) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of any Warrant Certificate to make or cause to be made any adjustment of the Exercise Price or number of the Warrant Shares or other securities or property deliverable as provided in this Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto.
Appears in 4 contracts
Sources: Warrant Agreement (Insilco Holding Co), Warrant Agreement (Insilco Holding Co), Warrant Agreement (Quaker Holding Co)
Warrant Agent. (a) The Company hereby appoints the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, upon the following terms and conditions by all of which the Company and every Warrant Holder, by acceptance of a Warrant, shall be bound:
(a) Statements contained in this Agreement and in the Warrant Certificates shall be taken as statements of the Company. The Warrant Agent assumes responsibility hereunder only for the correctness of any statement which describes agree that the Warrant Agent and/or for action taken or to be taken by will serve as an agent of the Warrant AgentCompany as set forth in this Agreement.
(b) The Warrant Agent shall not by any act hereunder be deemed to make any representation as to validity or authorization of the Warrants or the Warrant Certificates (except as to its countersignature thereon) or of any securities or other property delivered upon exercise of any Warrant, or as to the number or kind or amount of securities or other property deliverable upon exercise of any Warrant or the correctness of the representations of the Company made in such certificates that the Warrant Agent receives.
(c) The Warrant Agent shall not have any duty to calculate or determine any required adjustments with respect to the Exercise Price or the kind and amount of securities or other property receivable by Holders upon the exercise of Warrants, nor to determine the accuracy or correctness of any such calculation.
(d) The Warrant Agent shall not (i) be liable for any recital or statement of fact contained herein or in the Warrant Certificates or for any action taken, suffered or omitted by it in good faith in the belief that any Warrant Certificate or any other document or any signature is genuine or properly authorized, (ii) be responsible for any failure of by the Company to comply with any of the Company's covenants its obligations contained in this Agreement or in the Warrant Certificates, (iii) be liable for any act or omission in connection with this Agreement except for its own gross negligence or willful misconduct or (iv) have any responsibility to determine whether a transfer of a Warrant complies with applicable securities laws.
(ce) The Warrant Agent is hereby authorized to accept instructions with respect to the performance of its duties hereunder solely on behalf of the Company from the Chief Executive Officer, the President, the Chief Financial Officer, any Senior Vice President, or the Secretary or any Assistant Secretary of the Company and to apply to any such officer for written instructions (which will then be reasonably promptly given) and the Warrant Agent shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with the instructions of any such officer, except for its own gross negligence or willful misconduct, but in its discretion the Warrant Agent may in lieu thereof accept other evidence of such or may require such further or additional evidence as it may deem reasonable.
(f) The Warrant Agent may exercise any of the rights and powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys, agents or employees, provided reasonable care has been exercised in the selection and in the continued employment of any persons. The Warrant Agent shall not be under any obligation or duty to institute, appear in or defend any action, suit or legal proceeding in respect hereof, unless first indemnified to its satisfaction. The Warrant Agent shall promptly notify the Company in writing of any claim made or action, suit or proceeding instituted against or arising out of or in connection with this Agreement.
(g) The Company will take such action as may reasonably be required by the Warrant Agent in order to enable it to carry out or perform its duties under this Agreement.
(h) The Warrant Agent shall act solely as agent of the Company hereunder. The Warrant Agent shall only be liable for the failure to perform such duties as are specifically set forth herein.
(i) The Warrant Agent may, at its own expense, consult at any time with legal counsel satisfactory to it (who may be legal counsel for the Company), and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder in respect of for any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(ej) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement compensation for the all services rendered by the Warrant Agent. The Agent hereunder as the Company shall also and the Warrant Agent may agree from time to time, and to reimburse the Warrant Agent for all expensesreasonable expenses incurred in connection with the execution and administration of this Agreement (including the reasonable compensation and expenses of its counsel), taxes and governmental charges and all other charges of any kind or nature incurred by further agrees to indemnify the Warrant Agent for, defend and hold it harmless against, any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on its part, arising out of or in connection with the performance acceptance and administration of this Agreement, with such indemnification including the payment of Warrant Agent’s reasonable costs and fees of counsel as they are incurred in any defense or response to any claim made against the Warrant Agent concerning the subject matter of this Agreement.
(fk) [Reserved].
(l) The Company shall indemnify the Warrant Agent may resign its duties and hold it harmless against any be discharged from all further duties and all liabilities, including judgments, costs and counsel fees, incurred in connection with its performance of this Agreement, liability hereunder (except liability arising as a result of the Warrant Agent's negligence ’s own gross negligence, bad faith or bad faithwillful misconduct) upon the Company’s material breach of this Agreement which remains uncured for a period of three (3) days after Company’s receipt of written notice of such breach by Warrant Agent, or after giving 30 days prior written notice to the Company. In no case shall The Company may remove the Warrant Agent be liable for specialupon written notice, indirect, incidental or consequential loss or damage of any kind whatsoever, even if and the Warrant Agent shall thereupon in like manner be discharged from all further duties and liabilities hereunder, except as aforesaid. Upon such resignation or removal, the Company shall appoint in writing a new warrant agent. If the Company fails to do so within a period of 30 days after it has been advised of the likelihood notified in writing of such loss or damage.
(g) The resignation by the resigning Warrant Agent or after such removal, then the resigning Warrant Agent or the Holder of any Warrant (if such Holder first submits his, her or its Warrant Certificate for inspection by the Company) may apply to any court of competent jurisdiction for the appointment of a new warrant agent, provided that, for purposes of this Agreement, the Company shall be under no obligation deemed to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish be the Warrant Agent until a new warrant agent is appointed. After acceptance in writing of such appointment by the new warrant agent, it shall be vested with reasonable security the same powers, rights, duties and indemnity responsibilities as if it had been originally named herein as the Warrant Agent. Not later than the effective date of any such appointment, the Company shall give notice thereof to the resigning or removed Warrant Agent. Failure to give any notice provided for in this Section 15(l), however, or any costs and expenses which may be incurred in connection with such actiondefect therein, suit or legal proceeding, but this provision shall not affect the power legality or validity of the resignation of the Warrant Agent or the appointment of a new warrant agent, as the case may be. The Company shall, or shall cause the successor Warrant Agent to, deliver to take each Holder at such action Holder’s last address as shown on the register of Holders maintained by the Warrant Agent, notice of the appointment of the successor Warrant Agent and such successor Warrant Agent’s address for communication.
(m) Any corporation into which the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants new warrant agent may be enforced by merged or converted or any corporation resulting from any consolidation to which the Warrant Agent without the possession of or any of the Warrant Certificates new warrant agent shall be a party or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by corporation to which the Warrant Agent transfers substantially all of its corporate trust business shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(h) The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Warrants or other securities of the Company, or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, or otherwise act as fully and freely as though it were not a successor Warrant Agent under this Agreement without any further act, provided that such corporation (i) would be eligible for appointment as successor to the Warrant Agent under the provisions of Section 15(l) above or (ii) is a shareholder, director, officer or employee wholly owned subsidiary of such the Warrant Agent. Nothing herein shall preclude the Any such successor Warrant Agent from acting shall promptly cause notice of its succession as Warrant Agent to be mailed (by first class mail, postage prepaid) to each Holder in any other capacity for the Company or for any other legal entityaccordance with Section 14 above.
Appears in 4 contracts
Sources: Warrant Agency Agreement, Warrant Agency Agreement, Warrant Agency Agreement (Dolphin Entertainment, Inc.)
Warrant Agent. (a) The Company hereby appoints the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, upon the following terms and conditions by all of which the Company and every Warrant Holder, by acceptance of a Warrant, shall be bound:
(a) Statements contained in this Agreement and in the Warrant Certificates shall be taken as statements of the Company. The Warrant Agent assumes responsibility hereunder only for the correctness of any statement which describes agree that the Warrant Agent and/or for action taken or to be taken by will serve as an agent of the Warrant AgentCompany as set forth in this Agreement.
(b) The Warrant Agent shall not by any act hereunder be deemed to make any representation as to validity or authorization of the Warrants or the Warrant Certificates (except as to its countersignature thereon) or of any securities or other property delivered upon exercise of any Warrant, or as to the number or kind or amount of securities or other property deliverable upon exercise of any Warrant or the correctness of the representations of the Company made in such certificates that the Warrant Agent receives.
(c) The Warrant Agent shall not have any duty to calculate or determine any required adjustments with respect to the Exercise Price or the kind and amount of securities or other property receivable by Holders upon the exercise of Warrants, nor to determine the accuracy or correctness of any such calculation.
(d) The Warrant Agent shall not (i) be liable for any recital or statement of fact contained herein or in the Warrant Certificates or for any action taken, suffered or omitted by it in good faith in the belief that any Warrant Certificate or any other document or any signature is genuine or properly authorized, (ii) be responsible for any failure of by the Company to comply with any of the Company's covenants its obligations contained in this Agreement or in the Warrant Certificates, (iii) be liable for any act or omission in connection with this Agreement except for its own gross negligence or willful misconduct or (iv) have any responsibility to determine whether a transfer of a Warrant complies with applicable securities laws.
(ce) The Warrant Agent is hereby authorized to accept instructions with respect to the performance of its duties hereunder solely on behalf of the Company from the Chief Executive Officer, the President, the Chief Financial Officer, or the Secretary or any Assistant Secretary of the Company and to apply to any such officer for written instructions (which will then be reasonably promptly given) and the Warrant Agent shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with the instructions of any such officer, except for its own gross negligence or willful misconduct, but in its discretion the Warrant Agent may in lieu thereof accept other evidence of such or may require such further or additional evidence as it may deem reasonable.
(f) The Warrant Agent may exercise any of the rights and powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys, agents or employees, provided reasonable care has been exercised in the selection and in the continued employment of any persons. The Warrant Agent shall not be under any obligation or duty to institute, appear in or defend any action, suit or legal proceeding in respect hereof, unless first indemnified to its satisfaction. The Warrant Agent shall promptly notify the Company in writing of any claim made or action, suit or proceeding instituted against or arising out of or in connection with this Agreement.
(g) The Company will take such action as may reasonably be required by the Warrant Agent in order to enable it to carry out or perform its duties under this Agreement.
(h) The Warrant Agent shall act solely as agent of the Company hereunder. The Warrant Agent shall only be liable for the failure to perform such duties as are specifically set forth herein.
(i) The Warrant Agent may, at its own expense, consult at any time with legal counsel satisfactory to it (who may be legal counsel for the Company), and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder in respect of for any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(ej) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement compensation for the all services rendered by the Warrant Agent. The Agent hereunder as the Company shall also and the Warrant Agent may agree from time to time, and to reimburse the Warrant Agent for all expensesreasonable expenses incurred in connection with the execution and administration of this Agreement (including the reasonable compensation and expenses of its counsel), taxes and governmental charges and all other charges of any kind or nature incurred by further agrees to indemnify the Warrant Agent for, and hold it harmless against, any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on its part, arising out of or in connection with the performance acceptance and administration of this Agreement.
(fk) The Company shall indemnify No resignation or removal of the Warrant Agent and hold it harmless against any no appointment of a successor warrant agent shall become effective until the acceptance of appointment by the successor warrant agent as provided herein. The Warrant Agent may resign its duties and be discharged from all liabilities, including judgments, costs further duties and counsel fees, incurred in connection with its performance of this Agreement, liability hereunder (except liability arising as a result of the Warrant Agent's negligence ’s own gross negligence, bad faith or bad faithwillful misconduct) after giving 60 days prior written notice to the Company. In no case shall The Company may remove the Warrant Agent be liable for specialupon written notice, indirect, incidental or consequential loss or damage of any kind whatsoever, even if and the Warrant Agent shall thereupon in like manner be discharged from all further duties and liabilities hereunder, except as aforesaid. Upon such resignation or removal, the Company shall appoint in writing a new warrant agent. If the Company fails to do so within a period of 30 days after it has been advised of the likelihood notified in writing of such loss or damage.
(g) The resignation by the resigning Warrant Agent or after such removal, then the resigning Warrant Agent or the Holder of any Warrant (if such Holder first submits his, her or its Warrant Certificate for inspection by the Company) may apply to any court of competent jurisdiction for the appointment of a new warrant agent, provided that, for purposes of this Agreement, the Company shall be under no obligation deemed to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish be the Warrant Agent until a new warrant agent is appointed. After acceptance in writing of such appointment by the new warrant agent, it shall be vested with reasonable security the same powers, rights, duties and indemnity responsibilities as if it had been originally named herein as the Warrant Agent. Not later than the effective date of any such appointment, the Company shall give notice thereof to the resigning or removed Warrant Agent. Failure to give any notice provided for in this subsection 14(k), however, or any costs and expenses which may be incurred in connection with such actiondefect therein, suit or legal proceeding, but this provision shall not affect the power legality or validity of the resignation of the Warrant Agent or the appointment of a new warrant agent, as the case may be. The Company shall, or shall cause the successor Warrant Agent to, deliver to take each Holder at such action Holder’s last address as shown on the register of Holders maintained by the Warrant Agent, notice of the appointment of the successor Warrant Agent and such successor Warrant Agent’s address for communication.
(l) Any corporation into which the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants new warrant agent may be enforced by merged or converted or any corporation resulting from any consolidation to which the Warrant Agent without the possession of or any of the Warrant Certificates new warrant agent shall be a party or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by corporation to which the Warrant Agent transfers substantially all of its corporate trust business shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(h) The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Warrants or other securities of the Company, or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, or otherwise act as fully and freely as though it were not a successor Warrant Agent under this Agreement without any further act, provided that such corporation (i) would be eligible for appointment as successor to the Warrant Agent under the provisions of subsection 14(k) above or (ii) is a shareholder, director, officer or employee wholly owned subsidiary of such the Warrant Agent. Nothing herein shall preclude the Any such successor Warrant Agent from acting shall promptly cause notice of its succession as Warrant Agent to be mailed (by first class mail, postage prepaid) to each Holder in any other capacity for the Company or for any other legal entityaccordance with Section 14 above.
Appears in 4 contracts
Sources: Warrant Agent Agreement (Troika Media Group, Inc.), Warrant Agent Agreement (NutriBand Inc.), Warrant Agent Agreement (NutriBand Inc.)
Warrant Agent. The Company hereby appoints Warrant Agent undertakes the duties and obligations imposed by this Agreement (and no implied duties or obligations shall be read into this Agreement against the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, Agent) upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it of its own selection (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided . The Warrant Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or through agents or attorneys and the Warrant Agent shall have exercised reasonable not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care in the selection and continued employment of such counselby it hereunder.
(d) The Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Warrant Agent and conforming to the requirements of this Agreement. The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument (whether in its original or facsimile form) believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement such compensation for the all services rendered by the Warrant Agent. The Agent in the administration and execution of this Agreement as the Company and the Warrant Agent shall also agree in writing to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the performance execution of this Agreement.
Agreement (fincluding fees and expenses of its counsel) The Company shall and to indemnify the Warrant Agent (and hold any predecessor Warrant Agent) and save it harmless against any and all claims (whether asserted by the Company, a holder or any other person), damages, losses, expenses (including taxes other than taxes based on the income of the Warrant Agent), liabilities, including judgments, costs and counsel feesfees and expenses, incurred for anything done or omitted by the Warrant Agent in connection with its performance the execution of this Agreement, Agreement except as a result of the Warrant Agent's its negligence or bad faithwillful misconduct. In no case The provisions of this Section 15(e) shall survive the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised expiration of the likelihood Warrants and the termination of such loss or damagethis Agreement.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered holders of Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity satisfactory to it for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own negligence or willful misconduct. The Warrant Agent shall not be liable for any error of judgment made in good faith by it, unless it shall be proved that the Warrant Agent was negligent in ascertaining the pertinent facts. Notwithstanding anything in this Agreement to the contrary, in no event shall the Warrant Agent be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of the loss or damage and regardless of the form of the action.
(i) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of any Warrant Certificate to make or cause to be made any adjustment of the Exercise Price or number of the Warrant Shares or other securities or property deliverable as provided in this Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto.
(j) Notwithstanding anything in this Agreement to the contrary, neither the Company nor the Warrant Agent shall have any liability to any holder of a Warrant Certificate or other Person as a result of its inability to perform any of its obligations under this Agreement by reason of any preliminary or permanent injunction or other order, decree or ruling issued by a court of competent jurisdiction or by a governmental, regulatory or administrative agency or commission, or any statute, rule, regulation or executive order promulgated or enacted by any governmental authority prohibiting or otherwise restraining performance of such obligation; provided that (i) the Company must use its reasonable best efforts to have any such order, decree or ruling lifted or otherwise overturned as soon as possible and (ii) nothing in this Section 15(j) shall affect the Company's obligation under Section 6(d) to use its best efforts to have a registration statement in effect covering the Warrant Shares issuable upon exercise of the Warrants and to maintain a current prospectus relating to those Warrant Shares.
(k) Any application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent under this Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Warrant Agent shall not be liable for any action taken by, or omission of, the Warrant Agent in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any officer of the Company actually receives such application, unless any such officer shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Warrant Agent shall have received written instructions in response to such application specifying the action to be taken or omitted.
(l) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights.
(m) In addition to the foregoing, the Warrant Agent shall be protected and shall incur no liability for, or in respect of, any action taken or omitted by it in connection with its administration of this Agreement if such acts or omissions are not the result of the Warrant Agent's reckless disregard of its duty, gross negligence or willful misconduct and are in reliance upon (i) the proper execution of the certification concerning beneficial ownership appended to the form of assignment and the form of the election attached hereto unless the Warrant Agent shall have actual knowledge that, as executed, such certification is untrue, or (ii) the non-execution of such certification including, without limitation, any refusal to honor any otherwise permissible assignment or election by reason of such non-execution.
Appears in 4 contracts
Sources: Warrant Agreement (Prospect Acquisition Corp), Warrant Agreement (Prospect Acquisition Corp), Merger Agreement (Prospect Acquisition Corp)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, duties and the Warrant Agent hereby accepts such appointment, obligations imposed by this Agreement upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The , and the Warrant Agent assumes no responsibility hereunder only for the correctness accuracy of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. Except as herein otherwise provided, the Warrant AgentAgent assumes no responsibility with respect to the execution, delivery or distribution of the Warrant Certificates.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company nor shall it at any time be under any duty or responsibility to any holder of a Warrant to make or cause to be made any adjustment in any Exercise Price, in the number of shares of Common Stock issuable upon exercise of any Warrant (except as instructed by the Company), the number of Warrants outstanding, or to determine whether any facts exist which may require any such adjustments, or with respect to the nature or extent of or method employed in making any such adjustments when made.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent under this Agreement, to reimburse the Warrant Agent upon demand for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the performance of its duties under this Agreement.
(f) The Company shall Agreement and to indemnify the Warrant Agent and hold save it harmless against any and all liabilitieslosses, liabilities and expenses, including judgments, costs and reasonable counsel feesfees and expenses, incurred for anything done or omitted by the Warrant Agent arising out of or in connection with its performance of this Agreement, Agreement except as a result of the Warrant Agent's its gross negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered holders of Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity for any costs and or expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnityincurred. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of or judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent thereof, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it they were not the Warrant Agent under this Agreement Agreement, or a shareholder, stockholder director, officer or employee of such the Warrant Agent, as the case may be. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own gross negligence or bad faith.
(i) The Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement.
(j) The Warrant Agent shall not be under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except the due execution hereof by the Warrant Agent) or in respect of the validity or execution of any Warrant Certificate (except its countersignature thereof), nor shall the Warrant Agent by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of the Shares to be issued pursuant to this Agreement or any Warrant Certificate or as to whether the Shares will when issued be validly issued, fully paid and nonassessable or as to the Exercise Amount or the number of shares of Common Stock issuable upon exercise of any Warrant.
(k) The Warrant Agent is hereby authorized and directed to accept instructions with respect to the performance of its duties hereunder from the Chief Executive Officer, the President, any Vice President, the Treasurer, the Secretary or an Assistant Secretary of the Company, and to apply to such officers for advice or instructions in connection with its duties, and shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions of any such officer or in good faith reliance upon any statement signed by any one of such officers of the Company with respect to any fact or matter (unless other evidence in respect thereof is herein specifically prescribed) which may be deemed to be conclusively proved and established by such signed statement.
Appears in 4 contracts
Sources: Warrant Agreement (Apollo Medical Holdings, Inc.), Warrant Agreement (Cellectar Biosciences, Inc.), Warrant Agreement (INNOVATION ECONOMY Corp)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as the agent of the Company, Company and the Warrant Agent hereby accepts such appointment, appointment upon the following terms and conditions by all of which the Company and every Warrant Holder, by acceptance of a Warranthis/her Warrants, shall be bound:
(a) a. Statements contained in this Agreement and in the Warrant Certificates shall be taken as statements of the Company. The Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which of the same except such as describes the Warrant Agent and/or or for action taken or to be taken by the Warrant Agent.
(b) b. The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant Certificates.
(c) c. The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder in respect of any action taken, suffered suffered, or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) d. The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon any notice, resolution, waiverwavier, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) e. The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent in the execution of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and governmental charges charge and all other charges of any kind or in nature incurred by the Warrant Agent in the performance execution of this Agreement.
(f) The Company shall Agreement and to indemnify the Warrant Agent and hold save it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred in connection with its performance of for this Agreement, Agreement except as a result of the Warrant AgentAgents's negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(g) f. The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit suite or legal proceeding, but this provision shall not affect effect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced endorsed by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial trail or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests interest may appear, subject to the terms set forth in the Warrant Certificates.
(h) g. The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract contact with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
Appears in 4 contracts
Sources: Warrant Agreement (Royal Silver Mines Inc), Warrant Agreement (Exhaust Technologies Inc), Warrant Agreement (Maxam Gold Corp)
Warrant Agent. The Company hereby appoints Warrant Agent undertakes the duties and obligations imposed by this Agreement (and no implied duties or obligations shall be read into this Agreement against the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, Agent) upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it of its own selection (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided . The Warrant Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or through agents or attorneys and the Warrant Agent shall have exercised reasonable not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care in the selection and continued employment of such counselby it hereunder.
(d) The Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Warrant Agent and conforming to the requirements of this Agreement. The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument (whether in its original or facsimile form) believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement such compensation for the all services rendered by the Warrant Agent. The Agent in the administration and execution of this Agreement as the Company and the Warrant Agent shall also agree in writing to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the performance execution of this Agreement.
Agreement (fincluding fees and expenses of its counsel) The Company shall and to indemnify the Warrant Agent (and hold any predecessor Warrant Agent) and save it harmless against any and all claims (whether asserted by the Company, a holder or any other person), damages, losses, expenses (including taxes other than taxes based on the income of the Warrant Agent), liabilities, including judgments, costs and counsel feesfees and expenses, incurred for anything done or omitted by the Warrant Agent in connection with its performance the execution of this Agreement, Agreement except as a result of the Warrant Agent's its negligence or bad faithwillful misconduct. In no case The provisions of this Section 15(e) shall survive the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised expiration of the likelihood Warrants and the termination of such loss or damagethis Agreement.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered holders of Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity satisfactory to it for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own negligence or willful misconduct. The Warrant Agent shall not be liable for any error of judgment made in good faith by it, unless it shall be proved that the Warrant Agent was negligent in ascertaining the pertinent facts. Notwithstanding anything in this Agreement to the contrary, in no event shall the Warrant Agent be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of the loss or damage and regardless of the form of the action.
(i) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of any Warrant Certificate to make or cause to be made any adjustment of the Exercise Price or number of the Warrant Shares or other securities or property deliverable as provided in this Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto.
(j) Notwithstanding anything in this Agreement to the contrary, neither the Company nor the Warrant Agent shall have any liability to any holder of a Warrant Certificate or other Person as a result of its inability to perform any of its obligations under this Agreement by reason of any preliminary or permanent injunction or other order, decree or ruling issued by a court of competent jurisdiction or by a governmental, regulatory or administrative agency or commission, or any statute, rule, regulation or executive order promulgated or enacted by any governmental authority prohibiting or otherwise restraining performance of such obligation; provided that (i) the Company must use its reasonable best efforts to have any such order, decree or ruling lifted or otherwise overturned as soon as possible and (ii) nothing in this Section 15(j) shall affect the Company’s obligation under Section 6(d) to use its best efforts to have a registration statement in effect covering the Warrant Shares issuable upon exercise of the Warrants and to maintain a current prospectus relating to those Warrant Shares.
(k) Any application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent under this Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Warrant Agent shall not be liable for any action taken by, or omission of, the Warrant Agent in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any officer of the Company actually receives such application, unless any such officer shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Warrant Agent shall have received written instructions in response to such application specifying the action to be taken or omitted.
(l) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights.
(m) In addition to the foregoing, the Warrant Agent shall be protected and shall incur no liability for, or in respect of, any action taken or omitted by it in connection with its administration of this Agreement if such acts or omissions are in reliance upon (i) the proper execution of the certification concerning beneficial ownership appended to the form of assignment and the form of the election attached hereto unless the Warrant Agent shall have actual knowledge that, as executed, such certification is untrue, or (ii) the non-execution of such certification including, without limitation, any refusal to honor any otherwise permissible assignment or election by reason of such non-execution.
Appears in 3 contracts
Sources: Warrant Agreement (NTR Acquisition Co.), Warrant Agreement (NTR Acquisition Co.), Warrant Agreement (NTR Acquisition Co.)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes only the agent of the Company, duties and obligations expressly imposed by this Agreement and the Global Warrant Agent hereby accepts such appointmentCertificates, in each case upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe Warrantholders, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Global Warrant Certificates shall be taken as statements of the Company. The , and the Warrant Agent assumes no responsibility hereunder only for the correctness accuracy of any statement which describes of the same except to the extent that such statements describe the Warrant Agent and/or for or action taken or to be taken by the Warrant Agent. Except as expressly provided herein, the Warrant Agent assumes no responsibility with respect to the execution, delivery or distribution of the Global Warrant Certificates.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Global Warrant CertificatesCertificates to be complied with by the Company, nor shall it at any time be under any duty or responsibility to any Warrantholder to make or cause to be made any adjustment in the Exercise Price or in the number of Warrants Shares any Warrant is exercisable for (except as instructed in writing by the Company), or to determine whether any facts exist that may require any such adjustments, or with respect to the nature or extent of or method employed in making any such adjustments when made.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the CompanyCompany or an employee of the Warrant Agent), and the advice or opinion of such counsel will be full and complete authorization and protection to the Warrant Agent shall incur no liability or responsibility as to the Company or to any Warrant Holder in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion such advice or the advice of such counselopinion, provided the Warrant Agent shall have exercised reasonable care absent gross negligence, bad faith or willful misconduct in the selection and continued employment retention of such counsel and the reliance on such counsel’s advice or opinion (each as determined by a final non-appealable order, judgment, ruling or decree of a court of competent jurisdiction).
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder Warrantholder for any action taken in reliance upon in good faith on any written notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties. The Warrant Agent shall not take any instructions or directions except those given in accordance with this Agreement.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent under this Agreement in accordance with a fee schedule to be mutually agreed upon, to reimburse the Warrant Agent upon demand for all reasonable and documented out-of-pocket expenses, taxes including counsel fees and governmental charges and all other charges of any kind or nature disbursements, incurred by the Warrant Agent in the preparation, administration, delivery, execution and amendment of this Agreement and the performance of its duties under this Agreement.
(f) The Company shall Agreement and to indemnify the Warrant Agent and hold save it harmless against any and all liabilitieslosses, liabilities and expenses, including judgments, damages, fines, penalties, claims, demands and costs (including reasonable out-of-pocket counsel fees and counsel feesexpenses), incurred for anything done or omitted by the Warrant Agent arising out of or in connection with its performance of this Agreement, Agreement except as a result of the Warrant Agent's negligence its gross negligence, bad faith or bad faithwillful misconduct (each as determined by a final non-appealable order, judgment, ruling or decree of a court of competent jurisdiction). In no case shall The costs and expenses incurred by the Warrant Agent in enforcing the right to indemnification shall be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if paid by the Company except to the extent that the Warrant Agent has been advised is not entitled to indemnification due to its gross negligence, bad faith or willful misconduct (each as determined by a final non-appealable order, judgment, ruling or decree of a court of competent jurisdiction). Notwithstanding the likelihood of foregoing, the Company shall not be responsible for any settlement made without its written consent; provided that nothing in this sentence shall limit the Company’s obligations contained in this paragraph other than pursuant to such loss or damagea settlement.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnityliability. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates Warrants or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of or judgment shall be for the ratable benefit of the Warrant Holders Warrantholders, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholdermember, stockholder, affiliate, director, officer or employee of the Warrant Agent thereof, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be is interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were was not the Warrant Agent under this Agreement Agreement, or a shareholdermember, stockholder director, officer or employee of such the Warrant Agent, as the case may be. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything that it may do or refrain from doing in connection with this Agreement except in connection with its own gross negligence, bad faith or willful misconduct (each as determined by a final non-appealable order, judgment, ruling or decree of a court of competent jurisdiction). Notwithstanding anything in this Agreement to the contrary, in no event will the Warrant Agent be liable for special, indirect, incidental, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if the Warrant Agent has been advised of the possibility of such loss or damage.
(i) The Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement.
(j) The Warrant Agent shall not be under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except the due and validly authorized execution hereof by the Warrant Agent) or in respect of the validity or execution of any Global Warrant Certificate (except its due and validly authorized countersignature thereof), nor shall the Warrant Agent by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of the Warrant Shares to be issued pursuant to this Agreement or any Warrant or as to whether the Warrant Shares will when issued be validly issued, fully paid and nonassessable or as to the Exercise Price or the number of Warrant Shares a Warrant is exercisable for.
(k) Whenever in the performance of its duties under this Agreement the Warrant Agent deems it necessary or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action hereunder, the Warrant Agent is hereby authorized and directed to accept instructions with respect to the performance of its duties hereunder from an Appropriate Officer of the Company and to apply to such Appropriate Officer for advice or instructions in connection with its duties, and such instructions shall be full authorization and protection to the Warrant Agent and, absent gross negligence, bad faith or willful misconduct (each as determined by a final non-appealable order, judgment, ruling or decree of a court of competent jurisdiction), the Warrant Agent shall not be liable for any action taken, suffered to be taken, or omitted to be taken by it in accordance with instructions of any such Appropriate Officer or in reliance upon any statement signed by any one of such Appropriate Officers of the Company with respect to any fact or matter (unless other evidence in respect thereof is herein specifically prescribed) which may be deemed to be conclusively proved and established by such signed statement. The Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company.
(l) Notwithstanding anything contained herein to the contrary, the Warrant Agent’s aggregate liability during any term of this Agreement with respect to, arising from, or arising in connection with this Agreement, or from all Services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Company to the Warrant Agent as fees and charges, but not including reimbursable expenses, during the twelve (12) months immediately preceding the event for which recovery from Warrant Agent is being sought.
(m) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights if it believes that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured to it.
(n) If the Warrant Agent shall receive any notice or demand (other than notice of or demand for exercise of Warrants) addressed to the Company by any Warrantholder pursuant to the provisions of the Warrants, the Warrant Agent shall promptly forward such notice or demand to the Company.
(o) The Warrant Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys, accountants, agents or other experts, and the Warrant Agent will not be answerable or accountable for any act, default, neglect or misconduct of any such attorneys or agents or for any loss to the Company or the Warrantholders resulting from any such act, default, neglect or misconduct, absent gross negligence, bad faith or willful misconduct in the selection and continued employment thereof (each as determined by a final non-appealable order, judgment, ruling or decree of a court of competent jurisdiction).
(p) The Warrant Agent will not be under any duty or responsibility to ensure compliance with any applicable federal or state securities laws in connection with the issuance, transfer or exchange of the Warrants.
(q) The Warrant Agent shall have no duties, responsibilities or obligations as the Warrant Agent except those which are expressly set forth herein, and in any modification or amendment hereof to which the Warrant Agent has consented in writing, and no duties, responsibilities or obligations shall be implied or inferred. Without limiting the foregoing, unless otherwise expressly provided in this Agreement, the Warrant Agent shall not be subject to, nor be required to comply with, or determine if any Person has complied with, the Warrants or any other agreement between or among the parties hereto, even though reference thereto may be made in this Agreement, or to comply with any notice, instruction, direction, request or other communication, paper or document other than as expressly set forth in this Agreement.
(r) The Warrant Agent shall not incur any liability for not performing any act, duty, obligation or responsibility by reason of any occurrence beyond the control of the Warrant Agent (including without limitation any act or provision of any present or future law or regulation or governmental authority, any act of God, war, civil disorder or failure of any means of communication, terrorist acts, pandemics, epidemics, shortage of supply, breakdowns or malfunctions, interruptions or malfunction of computer facilities, or loss of data due to power failures or mechanical difficulties with information storage or retrieval systems, labor difficulties).
(s) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, or is for any reason unsure as to what action to take hereunder, the Warrant Agent shall notify the Company in writing as soon as practicable, and upon delivery of such notice may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company or any Warrantholder or other Person for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of Warrant Agent.
(t) The Warrant Agent and the Company agree that all books, records, information and data pertaining to the business of the other party, including inter alia, personal, non-public Warrantholder information, which are exchanged or received pursuant to the negotiation or the carrying out of this Agreement including the fees for services set forth in the attached schedule shall remain confidential, and shall not be voluntarily disclosed to any other person, except as may be required by law, including, without limitation, pursuant to subpoenas from state or federal government authorities (e.g., in divorce and criminal actions).
(u) The provisions of this Section 17 shall survive the termination of this Agreement, the exercise or expiration of the Warrants and the resignation or removal of the Warrant Agent.
(v) No provision of this Agreement shall be construed to relieve the Warrant Agent from liability for fraud, or its own gross negligence, bad faith or its willful misconduct (each as determined by a final non-appealable order, judgment, ruling or decree of a court of competent jurisdiction).
Appears in 3 contracts
Sources: Warrant Agreement (FTAI Infrastructure Inc.), Investor Rights Agreement (FTAI Infrastructure Inc.), Warrant Agreement (FTAI Infrastructure Inc.)
Warrant Agent. The Company hereby appoints (a) MERGER, CONSOLIDATION OR CHANGE OF NAME OF WARRANT AGENT.
(i) Any corporation into which the Warrant Agent may be merged or with which it may be consolidated, or any corporation resulting from any merger or consolidation to act as the agent of the Company, and which the Warrant Agent hereby accepts such appointmentshall be a party, upon or any corporation succeeding to the following terms and conditions by all corporate trust business of which the Company and every Warrant Holder, by acceptance of a WarrantAgent, shall be bound:
(a) Statements contained in the successor to the Warrant Agent hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto; PROVIDED, HOWEVER, that such successor corporation must be otherwise eligible for appointment as a Warrant Agent hereunder. In the event that at the time such successor to the Warrant Agent shall succeed to the agency created by this Agreement and in any of the Warrant Certificates shall be taken as statements of the Company. The Warrant Agent assumes responsibility hereunder only for the correctness of any statement which describes the Warrant Agent and/or for action taken or to be taken by the Warrant Agent.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant Certificates.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signedcountersigned but not delivered, sent or presented by the proper party or parties.
(e) The Company agrees to pay any such successor to the Warrant Agent may adopt the amount(s) described countersignature of such predecessor Warrant Agent and deliver such Warrant Certificates so countersigned; and in Schedule A to this Agreement for the services rendered by event that at the time of such succession any of the Warrant Agent. The Company Certificates shall also reimburse not have been countersigned, any such successor to the Warrant Agent for all expenses, taxes and governmental charges and all other charges may countersign such Warrant Certificates either in the name of any kind or nature incurred by the such predecessor Warrant Agent or in the performance name of such successor Warrant Agent; and in any event, all such Warrant Certificates shall have the full force and effect provided in such Warrant Certificates and in this Agreement.
(fii) The Company shall indemnify In the Warrant Agent and hold it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred in connection with its performance of this Agreement, except as a result of the Warrant Agent's negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(g) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof that at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by time the name of the Warrant Agent shall be brought in its name as Warrant Agent, changed and any recovery of judgment shall be for the ratable benefit at such time one or more of the Warrant Holders as their respective rights or interests may appearCertificates shall have been countersigned but not delivered, subject to the terms set forth in the Warrant Certificates.
(h) The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent may buy, sell adopt the countersignature under its prior name and deliver Warrant Certificates so countersigned; in the event that at that time one or deal in any more of the Warrants or other securities of the CompanyWarrant Certificates shall not have been countersigned, or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant Agent. Nothing herein shall preclude the Warrant Agent from acting may countersign such Warrant Certificates either in any other capacity for its prior name or in its changed name; and in all such cases such Warrant Certificates shall have the Company or for any other legal entity.full force and effect provided in such Warrant Certificates and in this
Appears in 3 contracts
Sources: Warrant Agreement (Dura Pharmaceuticals Inc/Ca), Warrant Agreement (Dura Pharmaceuticals Inc/Ca), Warrant Agreement (Dura Pharmaceuticals Inc/Ca)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as the agent of the Company, Company and the Warrant Agent hereby accepts such appointment, appointment upon the following terms and conditions by all of which the Company and every Warrant Holder, by acceptance of a Warranthis Warrant Certificates, shall be bound:
(a) Statements contained in this Agreement and in the Warrant Certificates Certificate shall be taken as statements of the Company. The Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which of the same except such as describes the Warrant Agent and/or or for action taken or to be taken by the Warrant Agent.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's ’s covenants contained in this Agreement or in the Warrant Certificates.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent in the execution of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or nature incurred by the Warrant Agent in the performance execution of this Agreement.
(f) The Company shall Agreement and to indemnify the Warrant Agent and hold save it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred in connection with its performance of for this Agreement, Agreement except as a result of the Warrant Agent's ’s gross negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental faith or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damagewillful misconduct.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Class C Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests interest may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Class C Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
Appears in 3 contracts
Sources: Warrant Agreement (Healthy Fast Food Inc), Warrant Agreement (Healthy Fast Food Inc), Warrant Agreement (Healthy Fast Food Inc)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes only the agent of the Company, duties and obligations expressly imposed by this Agreement and the Warrant Agent hereby accepts such appointmentCertificate, in each case upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The , and the Warrant Agent assumes no responsibility hereunder only for the correctness accuracy of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. Except as otherwise provided herein, the Warrant AgentAgent assumes no responsibility with respect to the execution, delivery or distribution of the Warrant Certificates.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company, nor shall it at any time be under any duty or responsibility to any holder of a Warrant to make or cause to be made any adjustment in any Exercise Price or in the number of Shares issuable upon exercise of any Warrant (except as instructed by the Company), or to determine whether any facts exist that may require any such adjustments, or with respect to the nature or extent of or method employed in making any such adjustments when made.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may also be counsel for the Company), and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care absent gross negligence, bad faith or willful misconduct (each as determined by a final order, judgment, ruling or decree of a court of competent jurisdiction) in the selection and continued employment retention of such counsel and the reliance on such counsel’s advice.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent under this Agreement, to reimburse the Warrant Agent upon demand for all reasonable expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the preparation, administration, delivery, execution and amendment of this Agreement and the performance of its duties under this Agreement.
(f) The Company shall Agreement and to indemnify the Warrant Agent and hold save it harmless against any and all liabilitieslosses, liabilities and reasonable expenses, including judgments, damages, fines, penalties, claims, demands, settlements, costs and reasonable counsel feesfees and expenses, incurred for anything done or omitted by the Warrant Agent arising out of or in connection with its performance of this Agreement, Agreement except as a result of the Warrant Agent's negligence its gross negligence, bad faith or bad faithwillful misconduct (each as determined by a final order, judgment, ruling or decree of a court of competent jurisdiction). In no case shall The reasonable costs and expenses incurred by the Warrant Agent in enforcing the right to indemnification shall be liable for specialpaid by the Company unless it is determined by a final order, indirectjudgment, incidental decree or consequential loss or damage ruling of any kind whatsoever, even if a court of competent jurisdiction that the Warrant Agent has been advised of the likelihood of such loss is not entitled to indemnification due to its gross negligence, bad faith or damagewillful misconduct.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered holders of Warrant Holders shall furnish Certificates furnishes the Warrant Agent with reasonable security and indemnity for any costs and or expenses which that may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnityincurred. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of or judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, affiliate, director, officer or employee of the Warrant Agent thereof, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be is interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were was not the Warrant Agent under this Agreement Agreement, or a shareholderstockholder, director, officer or employee of such the Warrant Agent, as the case may be. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything that it may do or refrain from doing in connection with this Agreement except in connection with its own gross negligence, bad faith or willful misconduct (each as determined by a final order, judgment, decree or ruling of a court of competent jurisdiction). In no event will the Warrant Agent be liable for special, indirect, incidental, punitive or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the possibility of such loss or damage. Any liability of the Warrant Agent under this Agreement to the Company will be limited to the amount of fees paid by the Company to the Warrant Agent.
(i) The Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement.
(j) The Warrant Agent shall not be under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except the due and validly authorized execution hereof by the Warrant Agent) or in respect of the validity or execution of any Warrant Certificate (except its due and validly authorized countersignature thereof), nor shall the Warrant Agent by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of the Shares to be issued pursuant to this Agreement or any Warrant Certificate or as to whether the Shares will when issued be validly issued, fully paid and nonassessable or as to the Exercise Price or the number of Shares issuable upon exercise of any Warrant.
(k) The Warrant Agent is hereby authorized and directed to accept instructions with respect to the performance of its duties hereunder from the Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, any Vice President, the Treasurer, the Secretary or an Assistant Secretary of the Company, and to apply to such officers for advice or instructions in connection with its duties, and such instructions shall be full authorization and protection to the Warrant Agent and the Warrant Agent shall not be liable for any action taken, suffered to be taken, or omitted to be taken by it in good faith in accordance with instructions of any such officer or in good faith reliance upon any statement signed by any one of such officers of the Company with respect to any fact or matter (unless other evidence in respect thereof is herein specifically prescribed) which may be deemed to be conclusively proved and established by such signed statement.
(l) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights if it believes that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured to it.
(m) If the Warrant Agent shall receive any notice or demand (other than notice of or demand for exercise of Warrants) addressed to the Company by the holder of the Warrant Certificates pursuant to the provisions of the Warrant Certificates, the Warrant Agent shall promptly forward such notice or demand to the Company.
(n) The provisions of this Section 18 shall survive the termination of this Agreement, the exercise or expiration of the Warrants and the resignation or removal of the Warrant Agent.
Appears in 3 contracts
Sources: Warrant Agreement (Xo Communications Inc), Warrant Agreement (Xo Communications Inc), Warrant Agreement (Xo Communications Inc)
Warrant Agent. (a) The Company hereby appoints the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, upon the following terms and conditions by all of which the Company and every Warrant Holder, by acceptance of a Warrant, shall be bound:
(a) Statements contained in this Agreement and in the Warrant Certificates shall be taken as statements of the Company. The Warrant Agent assumes responsibility hereunder only for the correctness of any statement which describes agree that the Warrant Agent and/or for action taken or to be taken by will serve as an agent of the Warrant AgentCompany as set forth in this Agreement.
(b) The Warrant Agent shall not by any act hereunder be deemed to make any representation as to validity or authorization of the Warrants or the Warrant Certificates (except as to its countersignature thereon) or of any securities or other property delivered upon exercise of any Warrant, or as to the number or kind or amount of securities or other property deliverable upon exercise of any Warrant or the correctness of the representations of the Company made in such certificates that the Warrant Agent receives.
(c) The Warrant Agent shall not have any duty to calculate or determine any required adjustments with respect to the Exercise Price or the kind and amount of securities or other property receivable by Holders upon the exercise of Warrants, nor to determine the accuracy or correctness of any such calculation.
(d) The Warrant Agent shall not (i) be liable for any recital or statement of fact contained herein or in the Warrant Certificates or for any action taken, suffered or omitted by it in good faith in the belief that any Warrant Certificate or any other document or any signature is genuine or properly authorized, (ii) be responsible for any failure of by the Company to comply with any of the Company's covenants its obligations contained in this Agreement or in the Warrant Certificates, (iii) be liable for any act or omission in connection with this Agreement except for its own gross negligence or willful misconduct or (iv) have any responsibility to determine whether a transfer of a Warrant complies with applicable securities laws.
(ce) The Warrant Agent is hereby authorized to accept instructions with respect to the performance of its duties hereunder from the Chief Executive Officer, the President, any Vice President, the Treasurer, or the Secretary or any Assistant Secretary of the Company and to apply to any such officer for written instructions (which will then be promptly given) and the Warrant Agent shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with the instructions of any such officer, except for its own gross negligence or willful misconduct, but in its discretion the Warrant Agent may in lieu thereof accept other evidence of such or may require such further or additional evidence as it may deem reasonable.
(f) The Warrant Agent may exercise any of the rights and powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys, agents or employees, provided reasonable care has been exercised in the selection and in the continued employment of any persons. The Warrant Agent shall not be under any obligation or duty to institute, appear in or defend any action, suit or legal proceeding in respect hereof, unless first indemnified to its satisfaction. The Warrant Agent shall promptly notify the Company in writing of any claim made or action, suit or proceeding instituted against or arising out of or in connection with this Agreement.
(g) The Company will take such action as may reasonably be required by the Warrant Agent in order to enable it to carry out or perform its duties under this Agreement.
(h) The Warrant Agent shall act solely as agent of the Company hereunder. The Warrant Agent shall only be liable for the failure to perform such duties as are specifically set forth herein.
(i) The Warrant Agent may consult at any time with legal counsel satisfactory to it (who may be legal counsel for the Company), and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder in respect of for any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(ej) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement compensation for the all services rendered by the Warrant Agent. The Agent hereunder as the Company shall also and the Warrant Agent may agree from time to time, and to reimburse the Warrant Agent for all expensesreasonable expenses incurred in connection with the execution and administration of this Agreement (including the reasonable compensation and expenses of its counsel), taxes and governmental charges and all other charges of any kind or nature incurred by further agrees to indemnify the Warrant Agent for, and hold it harmless against, any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on its part, arising out of or in connection with the performance acceptance and administration of this Agreement.
(f) The Company shall indemnify the Warrant Agent and hold it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred in connection with its performance of this Agreement, except as a result of the Warrant Agent's negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(gk) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(h) The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent Agent, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or its Affiliates or become pecuniarily interested in any transaction transactions in which the Company or its Affiliates may be interested, or contract with or lend money to the Company, Company or its Affiliates or otherwise act as fully and freely as though it were not the Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entityPerson.
(l) No resignation or removal of the Warrant Agent and no appointment of a successor warrant agent shall become effective until the acceptance of appointment by the successor warrant agent as provided herein. The Warrant Agent may resign its duties and be discharged from all further duties and liability hereunder (except liability arising as a result of the Warrant Agent’s own gross negligence or willful misconduct) after giving written notice to the Company. The Company may remove the Warrant Agent upon written notice, and the Warrant Agent shall thereupon in like manner be discharged from all further duties and liabilities hereunder, except as aforesaid. The Warrant Agent shall, at the Company’s expense, cause to be mailed (by first class mail, postage prepaid) to each Holder of a Warrant at such Holder’s last address as shown on the register of the Company maintained by the Warrant Agent a copy of said notice of resignation or notice of removal, as the case may be. Upon such resignation or removal, the Company shall appoint in writing a new warrant agent. If the Company fails to do so within a period of 30 days after it has been notified in writing of such resignation by the resigning Warrant Agent or after such removal, then the resigning Warrant Agent or the Holder of any Warrant may apply to any court of competent jurisdiction for the appointment of a new warrant agent. After acceptance in writing of such appointment by the new warrant agent, it shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent. Not later than the effective date of any such appointment, the Company shall give notice thereof to the resigning or removed Warrant Agent. Failure to give any notice provided for in this Section 14(l), however, or any defect therein, shall not affect the legality or validity of the resignation of the Warrant Agent or the appointment of a new warrant agent, as the case may be.
(m) Any corporation into which the Warrant Agent or any new warrant agent may be merged or converted or any corporation resulting from any consolidation to which the Warrant Agent or any new warrant agent shall be a party or any corporation to which the Warrant Agent transfers substantially all of its corporate trust business shall be a successor Warrant Agent under this Agreement without any further act, provided that such corporation (i) would be eligible for appointment as successor to the Warrant Agent under the provisions of Section 14(l) or (ii) is a wholly owned subsidiary of the Warrant Agent. Any such successor Warrant Agent shall promptly cause notice of its succession as Warrant Agent to be mailed (by first class mail, postage prepaid) to each Holder in accordance with Section 13.
Appears in 3 contracts
Sources: Warrant Agreement (Microvision Inc), Warrant Agreement (Microvision Inc), Warrant Agreement (Microvision Inc)
Warrant Agent. (a) The Company hereby appoints the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, upon the following terms and conditions by all of which the Company and every Warrant Holder, by acceptance of a Warrant, shall be bound:
(a) Statements contained in this Agreement and in the Warrant Certificates shall be taken as statements of the Company. The Warrant Agent assumes responsibility hereunder only for the correctness of any statement which describes agree that the Warrant Agent and/or for action taken or to be taken by will serve as an agent of the Warrant AgentCompany as set forth in this Agreement.
(b) The Warrant Agent shall not by any act hereunder be deemed to make any representation as to validity or authorization of the Warrants or the Warrant Certificates (except as to its countersignature thereon) or of any securities or other property delivered upon exercise of any Warrant, or as to the number or kind or amount of securities or other property deliverable upon exercise of any Warrant or the correctness of the representations of the Company made in such certificates that the Warrant Agent receives.
(c) The Warrant Agent shall not have any duty to calculate or determine any required adjustments with respect to the Exercise Price or the kind and amount of securities or other property receivable by Holders upon the exercise of Warrants, nor to determine the accuracy or correctness of any such calculation.
(d) The Warrant Agent shall not (i) be liable for any recital or statement of fact contained herein or in the Warrant Certificates or for any action taken, suffered or omitted by it in good faith in the belief that any Warrant Certificate or any other document or any signature is genuine or properly authorized, (ii) be responsible for any failure of by the Company to comply with any of the Company's covenants its obligations contained in this Agreement or in the Warrant Certificates, (iii) be liable for any act or omission in connection with this Agreement except for its own gross negligence or willful misconduct or (iv) have any responsibility to determine whether a transfer of a Warrant complies with applicable securities laws.
(ce) The Warrant Agent is hereby authorized to accept instructions with respect to the performance of its duties hereunder solely on behalf of the Company from the Chief Executive Officer, the President, the Chief Financial Officer, or the Secretary or any Assistant Secretary of the Company and to apply to any such officer for written instructions (which will then be reasonably promptly given) and the Warrant Agent shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with the instructions of any such officer, except for its own gross negligence or willful misconduct, but in its discretion the Warrant Agent may in lieu thereof accept other evidence of such or may require such further or additional evidence as it may deem reasonable.
(f) The Warrant Agent may exercise any of the rights and powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys, agents or employees, provided reasonable care has been exercised in the selection and in the continued employment of any persons. The Warrant Agent shall not be under any obligation or duty to institute, appear in or defend any action, suit or legal proceeding in respect hereof, unless first indemnified to its satisfaction. The Warrant Agent shall promptly notify the Company in writing of any claim made or action, suit or proceeding instituted against or arising out of or in connection with this Agreement.
(g) The Company will take such action as may reasonably be required by the Warrant Agent in order to enable it to carry out or perform its duties under this Agreement.
(h) The Warrant Agent shall act solely as agent of the Company hereunder. The Warrant Agent shall only be liable for the failure to perform such duties as are specifically set forth herein.
(i) The Warrant Agent may, at its own expense, consult at any time with legal counsel satisfactory to it (who may be legal counsel for the Company), and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder in respect of for any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(ej) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement compensation for the all services rendered by the Warrant Agent. The Agent hereunder as the Company shall also and the Warrant Agent may agree from time to time, and to reimburse the Warrant Agent for all expensesreasonable expenses incurred in connection with the execution and administration of this Agreement (including the reasonable compensation and expenses of its counsel), taxes and governmental charges and all other charges of any kind or nature incurred by further agrees to indemnify the Warrant Agent for, and hold it harmless against, any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on its part, arising out of or in connection with the performance acceptance and administration of this Agreement.
(fk) The Company shall indemnify No resignation or removal of the Warrant Agent and hold it harmless against any no appointment of a successor warrant agent shall become effective until the acceptance of appointment by the successor warrant agent as provided herein. The Warrant Agent may resign its duties and be discharged from all liabilities, including judgments, costs further duties and counsel fees, incurred in connection with its performance of this Agreement, liability hereunder (except liability arising as a result of the Warrant Agent's negligence ’s own gross negligence, bad faith or bad faithwillful misconduct) after giving 60 days prior written notice to the Company. In no case shall The Company may remove the Warrant Agent be liable for specialupon written notice, indirect, incidental or consequential loss or damage of any kind whatsoever, even if and the Warrant Agent shall thereupon in like manner be discharged from all further duties and liabilities hereunder, except as aforesaid. Upon such resignation or removal, the Company shall appoint in writing a new warrant agent. If the Company fails to do so within a period of 30 days after it has been advised of the likelihood notified in writing of such loss or damage.
(g) The resignation by the resigning Warrant Agent or after such removal, then the resigning Warrant Agent or the Holder of any Warrant (if such Holder first submits his, her or its Warrant Certificate for inspection by the Company) may apply to any court of competent jurisdiction for the appointment of a new warrant agent, provided that, for purposes of this Agreement, the Company shall be under no obligation deemed to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish be the Warrant Agent until a new warrant agent is appointed. After acceptance in writing of such appointment by the new warrant agent, it shall be vested with reasonable security the same powers, rights, duties and indemnity responsibilities as if it had been originally named herein as the Warrant Agent. Not later than the effective date of any such appointment, the Company shall give notice thereof to the resigning or removed Warrant Agent. Failure to give any notice provided for in this subsection 15(k), however, or any costs and expenses which may be incurred in connection with such actiondefect therein, suit or legal proceeding, but this provision shall not affect the power legality or validity of the resignation of the Warrant Agent or the appointment of a new warrant agent, as the case may be. The Company shall, or shall cause the successor Warrant Agent to, deliver to take each Holder at such action Holder’s last address as shown on the register of Holders maintained by the Warrant Agent, notice of the appointment of the successor Warrant Agent and such successor Warrant Agent’s address for communication.
(l) Any corporation into which the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants new warrant agent may be enforced by merged or converted or any corporation resulting from any consolidation to which the Warrant Agent without the possession of or any of the Warrant Certificates new warrant agent shall be a party or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by corporation to which the Warrant Agent transfers substantially all of its corporate trust business shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(h) The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Warrants or other securities of the Company, or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, or otherwise act as fully and freely as though it were not a successor Warrant Agent under this Agreement without any further act, provided that such corporation (i) would be eligible for appointment as successor to the Warrant Agent under the provisions of subsection 15(k) above or (ii) is a shareholder, director, officer or employee wholly owned subsidiary of such the Warrant Agent. Nothing herein shall preclude the Any such successor Warrant Agent from acting shall promptly cause notice of its succession as Warrant Agent to be mailed (by first class mail, postage prepaid) to each Holder in any other capacity for the Company or for any other legal entityaccordance with Section 14 above.
Appears in 3 contracts
Sources: Warrant Agent Agreement (Protagenic Therapeutics, Inc.\new), Warrant Agent Agreement (Protagenic Therapeutics, Inc.\new), Warrant Agent Agreement (Protagenic Therapeutics, Inc.\new)
Warrant Agent. (a) The Company hereby appoints the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, upon the following terms and conditions by all of which the Company and every Warrant Holder, by acceptance of a Warrant, shall be bound:
(a) Statements contained in this Agreement and in the Warrant Certificates shall be taken as statements of the Company. The Warrant Agent assumes responsibility hereunder only for the correctness of any statement which describes agree that the Warrant Agent and/or for action taken or to be taken by will serve as an agent of the Warrant AgentCompany as set forth in this Agreement.
(b) The Warrant Agent shall not by any act hereunder be deemed to make any representation as to validity or authorization of the Warrants or the Warrant Certificates (except as to its countersignature thereon) or of any securities or other property delivered upon exercise of any Warrant, or as to the number or kind or amount of securities or other property deliverable upon exercise of any Warrant or the correctness of the representations of the Company made in such certificates that the Warrant Agent receives.
(c) The Warrant Agent shall not have any duty to calculate or determine any required adjustments with respect to the Exercise Price or the kind and amount of securities or other property receivable by Holders upon the exercise of Warrants, nor to determine the accuracy or correctness of any such calculation.
(d) The Warrant Agent shall not (i) be liable for any recital or statement of fact contained herein or in the Warrant Certificates or for any action taken, suffered or omitted by it in good faith in the belief that any Warrant Certificate or any other document or any signature is genuine or properly authorized, (ii) be responsible for any failure of by the Company to comply with any of the Company's covenants its obligations contained in this Agreement or in the Warrant Certificates, (iii) be liable for any act or omission in connection with this Agreement except for its own gross negligence or willful misconduct or (iv) have any responsibility to determine whether a transfer of a Warrant complies with applicable securities laws.
(ce) The Warrant Agent is hereby authorized to accept instructions with respect to the performance of its duties hereunder from the Chief Executive Officer, President, Chief Financial Officer, any Vice President, the Treasurer, or the Secretary or any Assistant Secretary of the Company and to apply to any such officer for written instructions (which will then be promptly given) and the Warrant Agent shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with the instructions of any such officer, except for its own gross negligence or willful misconduct, but in its discretion the Warrant Agent may in lieu thereof accept other evidence of such or may require such further or additional evidence as it may deem reasonable.
(f) The Warrant Agent may exercise any of the rights and powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys, agents or employees, provided reasonable care has been exercised in the selection and in the continued employment of any persons. The Warrant Agent shall not be under any obligation or duty to institute, appear in or defend any action, suit or legal proceeding in respect hereof, unless first indemnified to its satisfaction. The Warrant Agent shall promptly notify the Company in writing of any claim made or action, suit or proceeding instituted against or arising out of or in connection with this Agreement.
(g) The Company will take such action as may reasonably be required by the Warrant Agent in order to enable it to carry out or perform its duties under this Agreement.
(h) The Warrant Agent shall act solely as agent of the Company hereunder. The Warrant Agent shall only be liable for the failure to perform such duties as are specifically set forth herein.
(i) The Warrant Agent may consult at any time with legal counsel satisfactory to it (who may be legal counsel for the Company), and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder in respect of for any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(ej) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement compensation for the all services rendered by the Warrant Agent. The Agent hereunder as the Company shall also and the Warrant Agent may agree from time to time, and to reimburse the Warrant Agent for all expensesreasonable expenses incurred in connection with the execution and administration of this Agreement (including the reasonable compensation and expenses of its counsel), taxes and governmental charges and all other charges of any kind or nature incurred by further agrees to indemnify the Warrant Agent for, and hold it harmless against, any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on its part, arising out of or in connection with the performance acceptance and administration of this Agreement.
(f) The Company shall indemnify the Warrant Agent and hold it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred in connection with its performance of this Agreement, except as a result of the Warrant Agent's negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(gk) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(h) The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent Agent, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or its Affiliates or become pecuniarily interested in any transaction transactions in which the Company or its Affiliates may be interested, or contract with or lend money to the Company, Company or its Affiliates or otherwise act as fully and freely as though it were not the Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entityPerson.
(l) No resignation or removal of the Warrant Agent and no appointment of a successor warrant agent shall become effective until the acceptance of appointment by the successor warrant agent as provided herein. The Warrant Agent may resign its duties and be discharged from all further duties and liability hereunder (except liability arising as a result of the Warrant Agent’s own gross negligence or willful misconduct) after giving written notice to the Company. The Company may remove the Warrant Agent upon written notice, and the Warrant Agent shall thereupon in like manner be discharged from all further duties and liabilities hereunder, except as aforesaid. The Warrant Agent shall, at the Company’s expense, cause to be mailed (by first class mail, postage prepaid) to each Holder of a Warrant at such Holder’s last address as shown on the register of the Company maintained by the Warrant Agent a copy of said notice of resignation or notice of removal, as the case may be. Upon such resignation or removal, the Company shall appoint in writing a new warrant agent. If the Company fails to do so within a period of 30 days after it has been notified in writing of such resignation by the resigning Warrant Agent or after such removal, then the resigning Warrant Agent or the Holder of any Warrant may apply to any court of competent jurisdiction for the appointment of a new warrant agent. After acceptance in writing of such appointment by the new warrant agent, it shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent. Not later than the effective date of any such appointment, the Company shall give notice thereof to the resigning or removed Warrant Agent. Failure to give any notice provided for in this Section 14(l), however, or any defect therein, shall not affect the legality or validity of the resignation of the Warrant Agent or the appointment of a new warrant agent, as the case may be.
(m) Any corporation into which the Warrant Agent or any new warrant agent may be merged or converted or any corporation resulting from any consolidation to which the Warrant Agent or any new warrant agent shall be a party or any corporation to which the Warrant Agent transfers substantially all of its corporate trust business shall be a successor Warrant Agent under this Agreement without any further act, provided that such corporation (i) would be eligible for appointment as successor to the Warrant Agent under the provisions of Section 14(l) or (ii) is a wholly owned subsidiary of the Warrant Agent. Any such successor Warrant Agent shall promptly cause notice of its succession as Warrant Agent to be mailed (by first class mail, postage prepaid) to each Holder in accordance with Section 13.
Appears in 3 contracts
Sources: Warrant Agreement, Warrant Agreement (Zogenix, Inc.), Warrant Agreement (Zogenix, Inc.)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, duties and the Warrant Agent hereby accepts such appointment, obligations imposed by this Agreement upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties. The Warrant Agent shall not be bound by any notice or demand, or any waiver, modification, termination or revision of this Agreement or any of the terms hereof, unless evidenced by a writing between the Company and the Warrant Agent.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent in the execution of this Agreement, to reimburse the Warrant Agent for all expenses, taxes (including withholding taxes) and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the execution, delivery and performance of its responsibilities under this Agreement.
(f) The Company shall Agreement and to indemnify the Warrant Agent and hold save it harmless against any and all liabilities, including judgments, costs and reasonable counsel fees, incurred for anything done or omitted by the Warrant Agent in connection with its the execution, delivery and performance of its responsibilities under this Agreement, Agreement except as a result of the Warrant Agent's its negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered holders of Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of or judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Except as may be limited by applicable law, the Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own negligence or bad faith.
(i) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of any Warrant Certificate to make or cause to be made any adjustment of the Exercise Rate or other securities or property deliverable as provided in this Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto.
Appears in 3 contracts
Sources: Warrant Agreement (Security Capital Group Inc/), Warrant Agreement (Homestead Village Inc), Warrant Agreement (Security Capital Group Inc/)
Warrant Agent. The Company hereby appoints Warrant Agent undertakes the duties and obligations imposed by this Agreement (and no implied duties or obligations shall be read into this Agreement against the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, Agent) upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the CompanyCompany and the Warrant Agent assumes no responsibility for the correctness of any of the same except such as describe the Warrant Agent or action taken or to be Table of Contents taken by it. The Warrant Agent assumes no responsibility hereunder only for with respect to the correctness distribution of any statement which describes the Warrant Agent and/or for action taken or to be taken by the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it of its own selection (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided . The Warrant Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or through agents or attorneys and the Warrant Agent shall have exercised reasonable not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care in the selection and continued employment of such counselby it hereunder.
(d) The Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Warrant Agent and conforming to the requirements of this Agreement. The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument (whether in its original or facsimile form) believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement such compensation for the all services rendered by the Warrant Agent. The Agent in the administration and execution of this Agreement as the Company and the Warrant Agent shall also agree in writing to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the performance execution of this Agreement.
Agreement (fincluding fees and expenses of its counsel) The Company shall and to indemnify the Warrant Agent (and hold any predecessor Warrant Agent) and save it harmless against any and all claims (whether asserted by the Company, a holder or any other person), damages, losses, expenses (including taxes other than taxes based on the income of the Warrant Agent), liabilities, including judgments, costs and counsel feesfees and expenses, incurred for anything done or omitted by the Warrant Agent in connection with its performance the execution of this Agreement, Agreement except as a result of the Warrant Agent's its negligence or bad faithwillful misconduct. In no case The provisions of this Section 15(e) shall survive the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised expiration of the likelihood Warrants and the termination of such loss or damagethis Agreement.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered holders of Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity satisfactory to it for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Table of Contents Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything that it may do or refrain from doing in connection with this Agreement except for its own negligence or willful misconduct. The Warrant Agent shall not be liable for any error of judgment made in good faith by it, unless it shall be proved that the Warrant Agent was negligent in ascertaining the pertinent facts. Notwithstanding anything in this Agreement to the contrary, in no event shall the Warrant Agent be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of the loss or damage and regardless of the form of the action.
(i) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of any Warrant Certificate to make or cause to be made any adjustment of the Exercise Price or number of the Warrant Shares or other securities or property deliverable as provided in this Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto.
(j) Notwithstanding anything in this Agreement to the contrary, neither the Company nor the Warrant Agent shall have any liability to any holder of a Warrant Certificate or other Person as a result of its inability to perform any of its obligations under this Agreement by reason of any preliminary or permanent injunction or other order, decree or ruling issued by a court of competent jurisdiction or by a governmental, regulatory or administrative agency or commission, or any statute, rule, regulation or executive order promulgated or enacted by any governmental authority prohibiting or otherwise restraining performance of such obligation; provided that (i) the Company must use its reasonable best efforts to have any such order, decree or ruling lifted or otherwise overturned as soon as possible and (ii) nothing in this Section 15(j) shall affect the Company’s obligation under Section 6(e) to use its best efforts to have a registration statement in effect covering the Warrant Shares issuable upon exercise of the Warrants and to maintain a current prospectus relating to those Warrant Shares.
Appears in 3 contracts
Sources: Warrant Agreement (HCM Acquisition CO), Warrant Agreement (HCM Acquisition CO), Warrant Agreement (HCM Acquisition CO)
Warrant Agent. The Company hereby appoints Warrant Agent undertakes the duties and obligations imposed by this Agreement (and no implied duties or obligations shall be read into this Agreement against the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, Agent) upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it of its own selection (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided . The Warrant Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or through agents or attorneys and the Warrant Agent shall have exercised reasonable not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care in the selection and continued employment of such counselby it hereunder.
(d) The Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Warrant Agent and conforming to the requirements of this Agreement. The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument (whether in its original or facsimile form) believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement such compensation for the all services rendered by the Warrant Agent. The Agent in the administration and execution of this Agreement as the Company and the Warrant Agent shall also agree in writing and to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the performance execution of this Agreement (including reasonable fees and expenses of its outside counsel) and to indemnify the Warrant Agent (and any predecessor Warrant Agent) and save it harmless against any and all claims (whether asserted by the Company, a holder or any other person), damages, losses, expenses (including taxes other than taxes based on the income of the Warrant Agent), liabilities, including judgments, costs and reasonable outside counsel fees and expenses, for anything done or omitted by the Warrant Agent in the execution of this Agreement except as a result of its negligence or willful misconduct. The provisions of this Section 15(e) shall survive the expiration of the Warrants and the termination of this Agreement.
(f) The Company shall indemnify the Warrant Agent and hold it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred in connection with its performance of this Agreement, except as a result of the Warrant Agent's negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(g) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered holders of Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity satisfactory to it for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholderAgreement, director, officer or employee of such Warrant Agentsubject to compliance with applicable laws. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything that it may do or refrain from doing in connection with this Agreement except for its own negligence or willful misconduct. Notwithstanding anything in this Agreement to the contrary, in no event shall the Warrant Agent be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of the loss or damage and regardless of the form of the action.
(i) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of any Warrant Certificate to make or cause to be made any adjustment of the Exercise Price or number of the Warrant Shares or other securities or property deliverable as provided in this Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto.
(j) Notwithstanding anything in this Agreement to the contrary, neither the Company nor the Warrant Agent shall have any liability to any holder of a Warrant Certificate or other Person as a result of its inability to perform any of its obligations under this Agreement by reason of any preliminary or permanent injunction or other order, decree or ruling issued by a court of competent jurisdiction or by a governmental, regulatory or administrative agency or commission, or any statute, rule, regulation or executive order promulgated or enacted by any governmental authority prohibiting or otherwise restraining performance of such obligation; provided that (i) the Company must use its reasonable best efforts to have any such order, decree or ruling lifted or otherwise overturned as soon as possible and (ii) nothing in this Section 15(j) shall affect the Company’s obligation under Section 6(e) to use its best efforts to have a registration statement in effect covering the Warrant Shares issuable upon exercise of the Warrants and to maintain a current prospectus relating to those Warrant Shares.
(k) Any application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent under this Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Warrant Agent shall not be liable for any action taken by, or omission of, the Warrant Agent in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any officer of the Company actually receives such application, unless any such officer shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Warrant Agent shall have received written instructions in response to such application specifying the action to be taken or omitted.
(l) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights.
(m) In addition to the foregoing, the Warrant Agent shall be protected and shall incur no liability for, or in respect of, any action taken or omitted by it in connection with its administration of this Agreement if such acts or omissions are not the result of the Warrant Agent’s reckless disregard of its duty, gross negligence or willful misconduct and are in reliance upon (i) the proper execution of the certification concerning beneficial ownership appended to the form of assignment and the form of the election attached hereto unless the Warrant Agent shall have actual knowledge that, as executed, such certification is untrue, or (ii) the non-execution of such certification including, without limitation, any refusal to honor any otherwise permissible assignment or election by reason of such non-execution.
Appears in 3 contracts
Sources: Warrant Agreement (Iridium Communications Inc.), Warrant Agreement (GHL Acquisition Corp.), Warrant Agreement (GHL Acquisition Corp.)
Warrant Agent. The Company hereby appoints Warrant Agent undertakes the duties and obligations imposed by this Agreement (and no implied duties or obligations shall be read into this Agreement against the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, Agent) upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements 15.1 The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as herein otherwise provided.
(b) 15.2 The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) 15.3 The Warrant Agent may consult at any time with counsel satisfactory to it of its own selection (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided . The Warrant Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or through agents or attorneys and the Warrant Agent shall have exercised reasonable not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care in the selection and continued employment of such counselby it hereunder.
(d) 15.4 The Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Warrant Agent and conforming to the requirements of this Agreement. The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument (whether in its original or facsimile form) believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) 15.5 The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement such compensation for the all services rendered by the Warrant Agent. The Agent in the administration and execution of this Agreement as the Company and the Warrant Agent shall also agree in writing to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the performance execution of this Agreement.
Agreement (fincluding fees and expenses of its counsel) The Company shall and to indemnify the Warrant Agent (and hold any predecessor Warrant Agent) and save it harmless against any and all claims (whether asserted by the Company, a holder or any other person), damages, losses, expenses (including taxes other than taxes based on the income of the Warrant Agent), liabilities, including judgments, costs and counsel feesfees and expenses, incurred for anything done or omitted by the Warrant Agent in connection with its performance the execution of this Agreement, Agreement except as a result of the Warrant Agent's its negligence or bad faithwillful misconduct. In no case The provisions of this Section 15.5 shall survive the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised expiration of the likelihood Warrants and the termination of such loss or damagethis Agreement.
(g) 15.6 The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered holders of Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity satisfactory to it for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(h) 15.7 The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
15.8 The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything that it may do or refrain from doing in connection with this Agreement except for its own negligence or willful misconduct. The Warrant Agent shall not be liable for any error of judgment made in good faith by it, unless it shall be proved that the Warrant Agent was negligent in ascertaining the pertinent facts. Notwithstanding anything in this Agreement to the contrary, in no event shall the Warrant Agent be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of the loss or damage and regardless of the form of the action.
15.9 The Warrant Agent shall not at any time be under any duty or responsibility to any holder of any Warrant Certificate to make or cause to be made any adjustment of the Exercise Price or number of the Warrant Shares or other securities or property deliverable as provided in this Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto.
15.10 Notwithstanding anything in this Agreement to the contrary, neither the Company nor the Warrant Agent shall have any liability to any holder of a Warrant Certificate or other Person as a result of its inability to perform any of its obligations under this Agreement by reason of any preliminary or permanent injunction or other order, decree or ruling issued by a court of competent jurisdiction or by a governmental, regulatory or administrative agency or commission, or any statute, rule, regulation or executive order promulgated or enacted by any governmental authority prohibiting or otherwise restraining performance of such obligation; provided that (i) the Company must use its reasonable best efforts to have any such order, decree or ruling lifted or otherwise overturned as soon as possible and (ii) nothing in this Section 15.10 shall affect the Company’s obligation under Section 6.5 to use its best efforts to have a registration statement in effect covering the Warrant Shares issuable upon exercise of the Warrants and to maintain a current prospectus relating to those Warrant Shares.
15.11 Any application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent under this Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Warrant Agent shall not be liable for any action taken by, or omission of, the Warrant Agent in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any officer of the Company actually receives such application, unless any such officer shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Warrant Agent shall have received written instructions in response to such application specifying the action to be taken or omitted.
15.12 No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights.
15.13 In addition to the foregoing, the Warrant Agent shall be protected and shall incur no liability for, or in respect of, any action taken or omitted by it in connection with its administration of this Agreement if such acts or omissions are not the result of the Warrant Agent’s reckless disregard of its duty, gross negligence or willful misconduct and are in reliance upon (i) the proper execution of the certification concerning beneficial ownership appended to the form of assignment and the form of the election attached hereto unless the Warrant Agent shall have actual knowledge that, as executed, such certification is untrue, or (ii) the non-execution of such certification including, without limitation, any refusal to honor any otherwise permissible assignment or election by reason of such non-execution.
Appears in 3 contracts
Sources: Warrant Agreement (North Asia Investment CORP), Warrant Agreement (North Asia Investment CORP), Warrant Agreement (North Asia Investment CORP)
Warrant Agent. The Company hereby appoints Warrant Agent undertakes the duties and obligations imposed by this Agreement (and no implied duties or obligations shall be read into this Agreement against the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, Agent) upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it of its own selection (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided . The Warrant Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or through agents or attorneys and the Warrant Agent shall have exercised reasonable not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care in the selection and continued employment of such counselby it hereunder.
(d) The Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Warrant Agent and conforming to the requirements of this Agreement. The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument (whether in its original or facsimile form) believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement such compensation for the all services rendered by the Warrant Agent. The Agent in the administration and execution of this Agreement as the Company and the Warrant Agent shall also agree in writing to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the performance execution of this Agreement.
Agreement (fincluding fees and expenses of its counsel) The Company shall and to indemnify the Warrant Agent (and hold any predecessor Warrant Agent) and save it harmless against any and all claims (whether asserted by the Company, a holder or any other person), damages, losses, expenses (including taxes other than taxes based on the income of the Warrant Agent), liabilities, including judgments, costs and counsel feesfees and expenses, incurred for anything done or omitted by the Warrant Agent in connection with its performance the execution of this Agreement, Agreement except as a result of the Warrant Agent's its negligence or bad faithwillful misconduct. In no case The provisions of this Section 15(e) shall survive the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised expiration of the likelihood Warrants and the termination of such loss or damagethis Agreement.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered holders of Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity satisfactory to it for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything that it may do or refrain from doing in connection with this Agreement except for its own negligence or willful misconduct. The Warrant Agent shall not be liable for any error of judgment made in good faith by it, unless it shall be proved that the Warrant Agent was negligent in ascertaining the pertinent facts. Notwithstanding anything in this Agreement to the contrary, in no event shall the Warrant Agent be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of the loss or damage and regardless of the form of the action.
(i) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of any Warrant Certificate to make or cause to be made any adjustment of the Exercise Price or number of the Warrant Shares or other securities or property deliverable as provided in this Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto.
(j) Notwithstanding anything in this Agreement to the contrary, neither the Company nor the Warrant Agent shall have any liability to any holder of a Warrant Certificate or other Person as a result of its inability to perform any of its obligations under this Agreement by reason of any preliminary or permanent injunction or other order, decree or ruling issued by a court of competent jurisdiction or by a governmental, regulatory or administrative agency or commission, or any statute, rule, regulation or executive order promulgated or enacted by any governmental authority prohibiting or otherwise restraining performance of such obligation; provided that (i) the Company must use its reasonable best efforts to have any such order, decree or ruling lifted or otherwise overturned as soon as possible and (ii) nothing in this Section 15(j) shall affect the Company's obligation under Section 6(d) to use its best efforts to have a registration statement in effect covering the Warrant Shares issuable upon exercise of the Warrants and to maintain a current prospectus relating to those Warrant Shares.
(k) Any application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent under this Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Warrant Agent shall not be liable for any action taken by, or omission of, the Warrant Agent in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any officer of the Company actually receives such application, unless any such officer shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Warrant Agent shall have received written instructions in response to such application specifying the action to be taken or omitted.
(l) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights.
(m) In addition to the foregoing, the Warrant Agent shall be protected and shall incur no liability for, or in respect of, any action taken or omitted by it in connection with its administration of this Agreement if such acts or omissions are not the result of the Warrant Agent's reckless disregard of its duty, gross negligence or willful misconduct and are in reliance upon (i) the proper execution of the certification concerning beneficial ownership appended to the form of assignment and the form of the election attached hereto unless the Warrant Agent shall have actual knowledge that, as executed, such certification is untrue, or (ii) the non-execution of such certification including, without limitation, any refusal to honor any otherwise permissible assignment or election by reason of such non-execution.
Appears in 2 contracts
Sources: Warrant Agreement (SP Acquisition Holdings, Inc.), Warrant Agreement (SP Acquisition Holdings, Inc.)
Warrant Agent. The Company hereby appoints Warrant Agent undertakes the duties and obligations imposed by this Warrant Agreement (and no implied duties or obligations shall be read into this Warrant Agreement against the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, Agent) upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Warrant Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it of its own selection (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided . The Warrant Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or through agents or attorneys and the Warrant Agent shall have exercised reasonable not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care in the selection and continued employment of such counselby it hereunder.
(d) The Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Warrant Agent and conforming to the requirements of this Warrant Agreement. The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument (whether in its original or facsimile form) believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement such compensation for the all services rendered by the Warrant Agent. The Agent in the administration and execution of this Warrant Agreement as the Company and the Warrant Agent shall also agree in writing to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the performance execution of this Agreement.
Warrant Agreement (fincluding fees and expenses of its counsel) The Company shall and to indemnify the Warrant Agent (and hold any predecessor Warrant Agent) and save it harmless against any and all claims (whether asserted by the Company, a holder or any other person), damages, losses, expenses (including taxes other than taxes based on the income of the Warrant Agent), liabilities, including judgments, costs and counsel feesfees and expenses, incurred for anything done or omitted by the Warrant Agent in connection with its performance the execution of this Agreement, Warrant Agreement except as a result of the Warrant Agent's its negligence or bad faithwillful misconduct. In no case The provisions of this Section 15(e) shall survive the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised expiration of the likelihood Warrants and the termination of such loss or damagethis Warrant Agreement.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered holders of Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity satisfactory to it for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Warrant Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything that it may do or refrain from doing in connection with this Warrant Agreement except for its own negligence or willful misconduct. The Warrant Agent shall not be liable for any error of judgment made in good faith by it, unless it shall be proved that the Warrant Agent was negligent in ascertaining the pertinent facts. Notwithstanding anything in this Warrant Agreement to the contrary, in no event shall the Warrant Agent be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of the loss or damage and regardless of the form of the action.
(i) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of any Warrant Certificate to make or cause to be made any adjustment of the Exercise Price or number of the Warrant Shares or other securities or property deliverable as provided in this Warrant Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto.
(j) Notwithstanding anything in this Warrant Agreement to the contrary, neither the Company nor the Warrant Agent shall have any liability to any holder of a Warrant Certificate or other Person as a result of its inability to perform any of its obligations under this Warrant Agreement by reason of any preliminary or permanent injunction or other order, decree or ruling issued by a court of competent jurisdiction or by a governmental, regulatory or administrative agency or commission, or any statute, rule, regulation or executive order promulgated or enacted by any governmental authority prohibiting or otherwise restraining performance of such obligation; provided that (i) the Company must use its reasonable best efforts to have any such order, decree or ruling lifted or otherwise overturned as soon as possible and (ii) nothing in this Section 15(j) shall affect the Company’s obligation under Section 6(d) to use its best efforts to have a registration statement in effect covering the Warrant Shares issuable upon exercise of the Warrants and to maintain a current prospectus relating to those Warrant Shares.
(k) Any application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent under this Warrant Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Warrant Agent shall not be liable for any action taken by, or omission of, the Warrant Agent in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any officer of the Company actually receives such application, unless any such officer shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Warrant Agent shall have received written instructions in response to such application specifying the action to be taken or omitted.
(l) No provision of this Warrant Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights.
(m) In addition to the foregoing, the Warrant Agent shall be protected and shall incur no liability for, or in respect of, any action taken or omitted by it in connection with its administration of this Warrant Agreement if such acts or omissions are not the result of the Warrant Agent’s reckless disregard of its duty, gross negligence or willful misconduct and are in reliance upon (i) the proper execution of the certification concerning beneficial ownership appended to the form of assignment and the form of the election attached hereto unless the Warrant Agent shall have actual knowledge that, as executed, such certification is untrue, or (ii) the non-execution of such certification including, without limitation, any refusal to honor any otherwise permissible assignment or election by reason of such non-execution.
(n) The Warrant Agent hereby waives any and all right, title, interest or claim of any kind (“Claim”) in or to any distribution of the Trust Account (as defined in that certain Investment Management Trust Agreement to be entered into in connection with the Initial Public Offering by and between the Company and the Warrant Agent as trustee thereunder), and hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any Claim against the Trust Account for any reason whatsoever.
Appears in 2 contracts
Sources: Warrant Agreement (Lambert's Cove Acquisition CORP), Warrant Agreement (ASM Acquisition CO LTD)
Warrant Agent. (a) The Company hereby appoints the Warrant Agent to act as undertakes only the agent of the Company, duties and obligations expressly imposed by this Warrant Agreement and the Global Warrant Agent hereby accepts such appointmentCertificates, in each case upon the following terms and conditions set forth below, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(ab) Statements The statements contained in this Agreement herein and in the Global Warrant Certificates shall be taken as deemed to be statements of the Company. The Warrant Agent assumes no responsibility hereunder only for the accuracy or correctness of any statement which describes such statements and is not required to verify such statements.
(c) Whenever in the performance of its duties under this Warrant Agreement the Warrant Agent and/or deems it necessary or desirable that any fact or matter be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, the Warrant Agent is hereby authorized and directed to accept instructions with respect to the performance of its duties hereunder from an Appropriate Officer and to apply to the Appropriate Officers for advice or instructions in connection with its duties, and such instructions shall be full authorization and protection to the Warrant Agent and, absent gross negligence, bad faith or willful misconduct (each as determined by a final, non-appealable judgment of a court of competent jurisdiction), the Warrant Agent shall not be liable for any action taken taken, suffered to be taken, or omitted to be taken by it in accordance with the instructions of any such Appropriate Officer or in reliance upon any statement signed by any one of such Appropriate Officers with respect to any fact or matter which may be deemed to be conclusively proved and established by such signed statement. In the event the Warrant Agent reasonably believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, or is uncertain of any action to take hereunder, the Warrant Agent, may, following prior written notice to the Company, in its discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the reasonable satisfaction of the Warrant Agent.
(bd) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Warrant Agreement (including, without limitation, any adjustment of the Exercise Price pursuant to Section 13 hereof, the authorization or reservation of shares of Common Stock pursuant to Section 12 hereof, the due execution and delivery by the Company of this Warrant Agreement or any Global Warrant Certificate) or in the Global Warrant CertificatesCertificates to be complied with by the Company.
(ce) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be outside counsel for the CompanyCompany or in-house counsel of the Warrant Agent), and the advice and opinion of such counsel will be full and complete authorization and protection to the Warrant Agent as to, and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder in respect of of, any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care absent gross negligence, bad faith or willful misconduct (each as determined by a final, non-appealable judgment of a court of competent jurisdiction) in the selection and continued employment retention of such counsel and the reliance on such counsel’s advice or opinion.
(df) The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder or any other person for any action taken in reliance upon on any Global Warrant Certificate, Book-Entry Statement, certificate representing shares of Common Stock, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties. The Warrant Agent shall not be bound by any notice or demand, or any waiver, modification, termination or revision of this Warrant Agreement or any of the terms hereof, unless evidenced by a writing between and signed by, the Company and the Warrant Agent. The Warrant Agent shall not be required to take instructions or directions except those given in accordance with this Warrant Agreement.
(eg) The Warrant Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys, accountants, agents or other experts, and the Warrant Agent will not be answerable or accountable for any act, default, neglect or unintentional misconduct of any such attorneys or agents or for any loss to the Company or the holders of the Warrants resulting from any such act, default, neglect or unintentional misconduct, absent gross negligence, willful misconduct or bad faith (as each is determined by a final non-appealable judgment of a court of competent jurisdiction) in the selection and continued employment thereof. Notwithstanding anything contained herein to the contrary, the Warrant Agent’s aggregate liability during any term of this Warrant Agreement with respect to, arising from, or arising in connection with this Warrant Agreement, or from all services provided or omitted to be provided under this Warrant Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Company to Warrant Agent as fees and charges, but not including reimbursable expenses.
(h) The Warrant Agent will not be under any duty or responsibility to insure compliance with any applicable federal or state securities laws in connection with the issuance, transfer or exchange of Global Warrant Certificates.
(i) The Warrant Agent shall not incur any liability for not performing any act, duty, obligation or responsibility by reason of any occurrence beyond the control of the Warrant Agent (including without limitation any act or provision of any present or future law or regulation or governmental authority, any act of God, war, civil disorder or failure of any means of communication).
(j) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent under this Warrant Agreement, to reimburse the Warrant Agent upon demand for all expensesreasonable out-of-pocket expenses (including counsel fees and other disbursements), taxes (including withholding taxes) and governmental charges and all other charges of any kind or and nature actually incurred by the Warrant Agent in the preparation, administration, execution, delivery and amendment of this Warrant Agreement and performance of its duties and responsibilities under this Agreement.
(f) The Company shall Warrant Agreement and to indemnify the Warrant Agent and hold save it harmless against any and all liabilitieslosses, liabilities and expenses, including judgments, damages, fines, penalties, claims, demands, costs and counsel feesfees and expenses, incurred for any action taken or omitted to be taken by the Warrant Agent, or any person acting on behalf of the Warrant Agent, in the arising out of or in connection with its performance of this Agreement, Warrant Agreement except as a result of the Warrant Agent's negligence its gross negligence, bad faith or bad faithwillful misconduct (each as determined by a final, non-appealable judgment of a court of competent jurisdiction). In no case shall The costs and expenses incurred by the Warrant Agent in enforcing the right to indemnification shall be liable for specialpaid by the Company except to the extent that it is determined by a final, indirect, incidental or consequential loss or damage non-appealable judgment of any kind whatsoever, even if a court of competent jurisdiction that the Warrant Agent has been advised of is not entitled to indemnification due to its gross negligence, bad faith or willful misconduct. Notwithstanding the likelihood of such loss or damageforegoing, the Company shall not be responsible for any settlement made without its written consent.
(gk) The Warrant Agent Agent, shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense or liability unless the Company or one or more Warrant Holders registered holders of Warrants shall furnish the Warrant Agent with reasonable security and indemnity commercially reasonably satisfactory to the Warrant Agent for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnityincurred. All rights of action under this Warrant Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates Warrants or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hl) The Except as otherwise prohibited by applicable law, the Warrant Agent Agent, and any shareholdermember, stockholder, affiliate, director, officer or employee of the Warrant Agent Agent, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement Warrant Agreement, or a shareholdermember, stockholder, affiliate, director, officer or employee of such the Warrant Agent, as the case may be. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(m) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the express provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Warrant Agreement, except for its own gross negligence, bad faith or willful misconduct (each as determined by a final, non-appealable judgment of a court of competent jurisdiction), provided that notwithstanding anything in this Warrant Agreement to the contrary, in no event shall the Warrant Agent be liable for punitive, special, indirect, incidental or consequential loss or damage of any kind whatsoever (including, without limitation, lost profits).
(n) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of any Warrant to make or cause to be made any adjustment of the Exercise Price or number of the shares of Common Stock or other securities or property deliverable as provided in this Warrant Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any shares of Common Stock or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such shares of Common Stock or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto. The Warrant Agent shall not be accountable to confirm or verify the accuracy or necessity of any calculation.
(o) The Warrant Agent shall have no duties, responsibilities or obligations as the Warrant Agent except those which are expressly set forth herein, and in any modification or amendment hereof to which the Warrant Agent has consented in writing, and no duties, responsibilities or obligations shall be implied or inferred. Without limiting the foregoing, unless otherwise expressly provided in this Warrant Agreement, the Warrant Agent shall not be subject to, nor be required to comply with, or determine if any Person has complied with, the Warrants or any other agreement between or among the parties hereto, even though reference thereto may be made in this Warrant Agreement, or to comply with any notice, instruction, direction, request or other communication, paper or document other than as expressly set forth in this Warrant Agreement.
(p) The Warrant Agent may rely conclusively and shall be protected in acting upon any order, judgment, instruction, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by or who may be an employee of the Warrant Agent or one of its affiliates), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability and of information therein contained) which is believed by the Warrant Agent, in good faith, to be genuine and to be signed or presented by the proper person or persons as set forth in Section 20(c).
(q) The Company agrees to perform, execute and acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments, and assurances as many reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Warrant Agreement.
(r) All rights and obligations contained in this Section 20 and Section 22 hereof shall survive the termination of this Warrant Agreement and the resignation, replacement or removal of the Warrant Agent.
(s) Any limitation on liability, duty to investigate or any other similar duty or obligation provided herein with respect to the Warrant Agent shall not be applicable to the Company if it is acting as Warrant Agent.
(t) The Warrant Agent shall not be under any responsibility or liability in respect of the validity of this Warrant Agreement or the execution and delivery hereof (except the due and validly authorized execution hereof by the Warrant Agent) or in respect of the validity or execution of any Global Warrant Certificate (except its due and validly authorized countersignature thereof), nor shall the Warrant Agent be responsible for any breach by the Company of any covenant or condition contained in this Warrant Agreement or in any Warrant, nor shall it be responsible to make or liable for any adjustments required under any provision hereof, including but not limited to Section 13 hereof, or responsible for the manner, method, amount of any such adjustment or the ascertaining of the existence of facts that would require any such adjustments, nor shall the Warrant Agent by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of the Shares to be issued pursuant to this Warrant Agreement or any Warrant or as to whether the Shares will when issued be validly issued, fully paid and nonassessable or as to the Exercise Price or the number of Shares issuable upon exercise of any warrant.
(u) No provision of this Warrant Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights.
(v) If the Warrant Agent shall receive any notice or demand (other than notice of or demand for exercise of Warrants) addressed to the Company by any holder pursuant to the provisions of the Warrants, the Warrant Agent shall forward such notice or demand to the Company as promptly as practicable.
Appears in 2 contracts
Sources: Assumption Agreement (Consolidated Communications Holdings, Inc.), Warrant Agreement (Fairpoint Communications Inc)
Warrant Agent. The Company hereby appoints Warrant Agent undertakes the duties and obligations imposed by this Agreement (and no implied duties or obligations shall be read into this Agreement against the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, Agent) upon the following terms and conditions conditions, by all of which the Company Corporation and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Corporation and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company Corporation to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Corporation.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it of its own selection (who may be counsel for the CompanyCorporation), which counsel shall be generally recognized as having competence in the subject matter under consideration, and the Warrant Agent shall incur no liability or responsibility to the Company Corporation or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided . The Warrant Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Warrant Agent shall have exercised reasonable not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care in the selection and continued employment of such counselby it hereunder.
(d) The Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Warrant Agent and conforming to the 7 requirements of this Agreement. The Warrant Agent shall incur no liability or responsibility to the Company Corporation or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument (whether in its original or facsimile form) believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company Corporation agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement such compensation for the all services rendered by the Warrant Agent. The Company Agent in the administration and execution of this Agreement as the Corporation and the Warrant Agent shall also agree in writing to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the performance execution of this Agreement.
Agreement (fincluding fees and expenses of its counsel) The Company shall and to indemnify the Warrant Agent (and hold any predecessor Warrant Agent) and save it harmless against any and all claims (whether asserted by the Corporation, a holder or any other person), damages, losses, expenses (including taxes other than taxes based on the income of the Warrant Agent), liabilities, including judgments, costs and counsel feesfees and expenses, incurred for anything done or omitted by the Warrant Agent in connection with its performance the execution of this Agreement, Agreement except as a result of the Warrant Agent's its gross negligence or bad faithwillful misconduct. In no case The provisions of this Section 17(e) shall survive the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised expiration of the likelihood Warrants and the termination of such loss or damagethis Agreement.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company Corporation or one or more registered holders of Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity satisfactory to it for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholder, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Corporation or become pecuniarily interested in any transaction in which the Company Corporation may be interested, or contract with or lend money to the Company, Corporation or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company Corporation or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Corporation, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own gross negligence or willful misconduct. The Warrant Agent shall not be liable for any error of judgment made in good faith by it, unless it shall be proved that the Warrant Agent was grossly negligent in ascertaining the pertinent facts. Notwithstanding anything in this Agreement to the contrary, in no event shall the Warrant Agent be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of the loss or damage and regardless of the form of the action.
(i) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of any Warrant Certificate to make or cause to be made any adjustment of the Exercise Price or number of the Warrant Shares or other securities or property deliverable as provided in this Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto. 8
(j) Notwithstanding anything in this Agreement to the contrary, neither the Corporation nor the Warrant Agent shall have any liability to any holder of a Warrant Certificate or other Person as a result of its inability to perform any of its obligations under this Agreement by reason of any preliminary or permanent injunction or other order, decree or ruling issued by a court of competent jurisdiction or by a governmental, regulatory or administrative agency or commission, or any statute, rule, regulation or executive order promulgated or enacted by any governmental authority prohibiting or otherwise restraining performance of such obligation; provided that the Corporation must use its reasonable best efforts to have any such order, decree or ruling lifted or otherwise overturned as soon as possible.
(k) Any application by the Warrant Agent for written instructions from the Corporation may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent under this Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Warrant Agent shall not be liable for any action taken by, or omission of, the Warrant Agent in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any officer of the Corporation actually receives such application, unless any such officer shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Warrant Agent shall have received written instructions in response to such application specifying the action to be taken or omitted.
(l) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights.
(m) In addition to the foregoing, the Warrant Agent shall be protected and shall incur no liability for, or in respect of, any action taken or omitted by it in connection with its administration of this Agreement if such acts or omissions are in reliance upon the proper execution of the certification concerning beneficial ownership appended to the form of assignment and the form of the election attached hereto unless the Warrant Agent shall have actual knowledge that, as executed, such certification is untrue, or the non-execution of such certification including, without limitation, any refusal to honor any otherwise permissible assignment or election by reason of such non-execution.
Appears in 2 contracts
Sources: Warrant Agreement (Corning Natural Gas Corp), Warrant Agreement (Corning Natural Gas Corp)
Warrant Agent. (a) The Company hereby appoints the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, upon the following terms and conditions by all of which the Company and every Warrant Holder, by acceptance of a Warrant, shall be bound:
(a) Statements contained in this Agreement and in the Warrant Certificates shall be taken as statements of the Company. The Warrant Agent assumes responsibility hereunder only for the correctness of any statement which describes agree that the Warrant Agent and/or for action taken or to be taken by will serve as an agent of the Warrant AgentCompany as set forth in this Agreement.
(b) The Warrant Agent shall not by any act hereunder be deemed to make any representation as to validity or authorization of the Warrants or the Warrant Certificates (except as to its countersignature thereon) or of any securities or other property delivered upon exercise of any Warrant, or as to the number or kind or amount of securities or other property deliverable upon exercise of any Warrant or the correctness of the representations of the Company made in such certificates that the Warrant Agent receives.
(c) The Warrant Agent shall not have any duty to calculate or determine any required adjustments with respect to the Exercise Price or the kind and amount of securities or other property receivable by Holders upon the exercise of Warrants, nor to determine the accuracy or correctness of any such calculation.
(d) The Warrant Agent shall not (i) be liable for any recital or statement of fact contained herein or in the Warrant Certificates or for any action taken, suffered or omitted by it in good faith in the belief that any Warrant Certificate or any other document or any signature is genuine or properly authorized, (ii) be responsible for any failure of by the Company to comply with any of the Company's covenants its obligations contained in this Agreement or in the Warrant Certificates, (iii) be liable for any act or omission in connection with this Agreement except for its own gross negligence or willful misconduct or (iv) have any responsibility to determine whether a transfer of a Warrant complies with applicable securities laws.
(ce) The Warrant Agent is hereby authorized to accept instructions with respect to the performance of its duties hereunder solely on behalf of the Company from the Chief Executive Officer, the President, the Chief Financial Officer, any Senior Vice President, or the Secretary or any Assistant Secretary of the Company and to apply to any such officer for written instructions (which will then be reasonably promptly given) and the Warrant Agent shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with the instructions of any such officer, except for its own gross negligence or willful misconduct, but in its discretion the Warrant Agent may in lieu thereof accept other evidence of such or may require such further or additional evidence as it may deem reasonable.
(f) The Warrant Agent may exercise any of the rights and powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys, agents or employees, provided reasonable care has been exercised in the selection and in the continued employment of any persons. The Warrant Agent shall not be under any obligation or duty to institute, appear in or defend any action, suit or legal proceeding in respect hereof, unless first indemnified to its satisfaction. The Warrant Agent shall promptly notify the Company in writing of any claim made or action, suit or proceeding instituted against or arising out of or in connection with this Agreement.
(g) The Company will take such action as may reasonably be required by the Warrant Agent in order to enable it to carry out or perform its duties under this Agreement.
(h) The Warrant Agent shall act solely as agent of the Company hereunder. The Warrant Agent shall only be liable for the failure to perform such duties as are specifically set forth herein.
(i) The Warrant Agent may, at its own expense, consult at any time with legal counsel satisfactory to it (who may be legal counsel for the Company), and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder in respect of for any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(ej) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement compensation for the all services rendered by the Warrant Agent. The Agent hereunder as the Company shall also and the Warrant Agent may agree from time to time, and to reimburse the Warrant Agent for all expensesreasonable expenses incurred in connection with the execution and administration of this Agreement (including the reasonable compensation and expenses of its counsel), taxes and governmental charges and all other charges of any kind or nature incurred by further agrees to indemnify the Warrant Agent for, and hold it harmless against, any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on its part, arising out of or in connection with the performance acceptance and administration of this Agreement.
(fk) The Company shall indemnify [Reserved].
(l) No resignation or removal of the Warrant Agent and hold it harmless against any no appointment of a successor warrant agent shall become effective until the acceptance of appointment by the successor warrant agent as provided herein. The Warrant Agent may resign its duties and be discharged from all liabilities, including judgments, costs further duties and counsel fees, incurred in connection with its performance of this Agreement, liability hereunder (except liability arising as a result of the Warrant Agent's negligence ’s own gross negligence, bad faith or bad faithwillful misconduct) after giving 60 days prior written notice to the Company. In no case shall The Company may remove the Warrant Agent be liable for specialupon written notice, indirect, incidental or consequential loss or damage of any kind whatsoever, even if and the Warrant Agent shall thereupon in like manner be discharged from all further duties and liabilities hereunder, except as aforesaid. Upon such resignation or removal, the Company shall appoint in writing a new warrant agent. If the Company fails to do so within a period of 30 days after it has been advised of the likelihood notified in writing of such loss or damage.
(g) The resignation by the resigning Warrant Agent or after such removal, then the resigning Warrant Agent or the Holder of any Warrant (if such Holder first submits his, her or its Warrant Certificate for inspection by the Company) may apply to any court of competent jurisdiction for the appointment of a new warrant agent, provided that, for purposes of this Agreement, the Company shall be under no obligation deemed to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish be the Warrant Agent until a new warrant agent is appointed. After acceptance in writing of such appointment by the new warrant agent, it shall be vested with reasonable security the same powers, rights, duties and indemnity responsibilities as if it had been originally named herein as the Warrant Agent. Not later than the effective date of any such appointment, the Company shall give notice thereof to the resigning or removed Warrant Agent. Failure to give any notice provided for in this subsection 15(l), however, or any costs and expenses which may be incurred in connection with such actiondefect therein, suit or legal proceeding, but this provision shall not affect the power legality or validity of the resignation of the Warrant Agent or the appointment of a new warrant agent, as the case may be. The Company shall, or shall cause the successor Warrant Agent to, deliver to take each Holder at such action Holder’s last address as shown on the register of Holders maintained by the Warrant Agent, notice of the appointment of the successor Warrant Agent and such successor Warrant Agent’s address for communication.
(m) Any corporation into which the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants new warrant agent may be enforced by merged or converted or any corporation resulting from any consolidation to which the Warrant Agent without the possession of or any of the Warrant Certificates new warrant agent shall be a party or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by corporation to which the Warrant Agent transfers substantially all of its corporate trust business shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(h) The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Warrants or other securities of the Company, or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, or otherwise act as fully and freely as though it were not a successor Warrant Agent under this Agreement without any further act, provided that such corporation (i) would be eligible for appointment as successor to the Warrant Agent under the provisions of subsection 15(l) above or (ii) is a shareholder, director, officer or employee wholly owned subsidiary of such the Warrant Agent. Nothing herein shall preclude the Any such successor Warrant Agent from acting shall promptly cause notice of its succession as Warrant Agent to be mailed (by first class mail, postage prepaid) to each Holder in any other capacity for the Company or for any other legal entityaccordance with Section 14 above.
Appears in 2 contracts
Sources: Warrant Agency Agreement (Accelerated Pharma, Inc.), Warrant Agency Agreement (Accelerated Pharma, Inc.)
Warrant Agent. (a) The Company hereby appoints the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, upon the following terms and conditions by all of which the Company and every Warrant Holder, by acceptance of a Warrant, shall be bound:
(a) Statements contained in this Agreement and in the Warrant Certificates shall be taken as statements of the Company. The Warrant Agent assumes responsibility hereunder only for the correctness of any statement which describes agree that the Warrant Agent and/or for action taken or to be taken by will serve as an agent of the Warrant AgentCompany as set forth in this Agreement.
(b) The Warrant Agent shall not by any act hereunder be deemed to make any representation as to validity or authorization of the Warrants or the Warrant Certificates (except as to its countersignature thereon) or of any securities or other property delivered upon exercise of any Warrant, or as to the number or kind or amount of securities or other property deliverable upon exercise of any Warrant or the correctness of the representations of the Company made in such certificates that the Warrant Agent receives.
(c) The Warrant Agent shall not have any duty to calculate or determine any required adjustments with respect to the Exercise Price or the kind and amount of securities or other property receivable by Holders upon the exercise of Warrants, nor to determine the accuracy or correctness of any such calculation.
(d) The Warrant Agent shall not (i) be liable for any recital or statement of fact contained herein or in the Warrant Certificates or for any action taken, suffered or omitted by it in good faith in the belief that any Warrant Certificate or any other document or any signature is genuine or properly authorized, (ii) be responsible for any failure of by the Company to comply with any of the Company's covenants its obligations contained in this Agreement or in the Warrant Certificates, (iii) be liable for any act or omission in connection with this Agreement except for its own gross negligence or willful misconduct or (iv) have any responsibility to determine whether a transfer of a Warrant complies with applicable securities laws.
(ce) The Warrant Agent is hereby authorized to accept instructions with respect to the performance of its duties hereunder from the Chief Executive Officer, the President, the Chief Financial Officer, any Vice President, the Treasurer, or the Secretary or any Assistant Secretary of the Company and to apply to any such officer for written instructions (which will then be reasonably promptly given) and the Warrant Agent shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with the instructions of any such officer, except for its own gross negligence or willful misconduct, but in its discretion the Warrant Agent may in lieu thereof accept other evidence of such or may require such further or additional evidence as it may deem reasonable.
(f) The Warrant Agent may exercise any of the rights and powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys, agents or employees, provided reasonable care has been exercised in the selection and in the continued employment of any persons. The Warrant Agent shall not be under any obligation or duty to institute, appear in or defend any action, suit or legal proceeding in respect hereof, unless first indemnified to its satisfaction. The Warrant Agent shall promptly notify the Company in writing of any claim made or action, suit or proceeding instituted against or arising out of or in connection with this Agreement.
(g) The Company will take such action as may reasonably be required by the Warrant Agent in order to enable it to carry out or perform its duties under this Agreement.
(h) The Warrant Agent shall act solely as agent of the Company hereunder. The Warrant Agent shall only be liable for the failure to perform such duties as are specifically set forth herein.
(i) The Warrant Agent may consult at any time with legal counsel satisfactory to it (who may be legal counsel for the Company), and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder in respect of for any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(ej) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement compensation for the all services rendered by the Warrant Agent. The Agent hereunder as the Company shall also and the Warrant Agent may agree from time to time, and to reimburse the Warrant Agent for all expensesreasonable expenses incurred in connection with the execution and administration of this Agreement (including the reasonable compensation and expenses of its counsel), taxes and governmental charges and all other charges of any kind or nature incurred by further agrees to indemnify the Warrant Agent for, and hold it harmless against, any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on its part, arising out of or in connection with the performance acceptance and administration of this Agreement.
(f) The Company shall indemnify the Warrant Agent and hold it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred in connection with its performance of this Agreement, except as a result of the Warrant Agent's negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(gk) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(h) The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent Agent, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or its Affiliates or become pecuniarily interested in any transaction transactions in which the Company or its Affiliates may be interested, or contract with or lend money to the Company, Company or its Affiliates or otherwise act as fully and freely as though it were not the Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entityPerson.
(l) No resignation or removal of the Warrant Agent and no appointment of a successor warrant agent shall become effective until the acceptance of appointment by the successor warrant agent as provided herein. The Warrant Agent may resign its duties and be discharged from all further duties and liability hereunder (except liability arising as a result of the Warrant Agent’s own gross negligence or willful misconduct) after giving written notice to the Company. The Company may remove the Warrant Agent upon written notice, and the Warrant Agent shall thereupon in like manner be discharged from all further duties and liabilities hereunder, except as aforesaid. The Warrant Agent shall, at the Company’s expense, cause to be mailed (by first class mail, postage prepaid) to each Holder of a Warrant at such Holder’s last address as shown on the register of the Company maintained by the Warrant Agent a copy of said notice of resignation or notice of removal, as the case may be. Upon such resignation or removal, the Company shall appoint in writing a new warrant agent. If the Company fails to do so within a period of 30 days after it has been notified in writing of such resignation by the resigning Warrant Agent or after such removal, then the resigning Warrant Agent or the Holder of any Warrant may apply to any court of competent jurisdiction for the appointment of a new warrant agent. After acceptance in writing of such appointment by the new warrant agent, it shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent. Not later than the effective date of any such appointment, the Company shall give notice thereof to the resigning or removed Warrant Agent. Failure to give any notice provided for in this subsection 15(l), however, or any defect therein, shall not affect the legality or validity of the resignation of the Warrant Agent or the appointment of a new warrant agent, as the case may be.
(m) Any corporation into which the Warrant Agent or any new warrant agent may be merged or converted or any corporation resulting from any consolidation to which the Warrant Agent or any new warrant agent shall be a party or any corporation to which the Warrant Agent transfers substantially all of its corporate trust business shall be a successor Warrant Agent under this Agreement without any further act, provided that such corporation (i) would be eligible for appointment as successor to the Warrant Agent under the provisions of subsection 15(l) above or (ii) is a wholly owned subsidiary of the Warrant Agent. Any such successor Warrant Agent shall promptly cause notice of its succession as Warrant Agent to be mailed (by first class mail, postage prepaid) to each Holder in accordance with Section 14 above.
Appears in 2 contracts
Sources: Warrant Agreement (BIND Therapeutics, Inc), Warrant Agreement (BIND Therapeutics, Inc)
Warrant Agent. (a) The Company hereby appoints the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, upon the following terms and conditions by all of which the Company and every Warrant Holder, by acceptance of a Warrant, shall be bound:
(a) Statements contained in this Agreement and in the Warrant Certificates shall be taken as statements of the Company. The Warrant Agent assumes responsibility hereunder only for the correctness of any statement which describes agree that the Warrant Agent and/or for action taken or to be taken by will serve as an agent of the Warrant AgentCompany as set forth in this Agreement.
(b) The Warrant Agent shall not by any act hereunder be deemed to make any representation as to validity or authorization of the Warrants or the Warrant Certificates (except as to its countersignature thereon) or of any securities or other property delivered upon exercise of any Warrant, or as to the number or kind or amount of securities or other property deliverable upon exercise of any Warrant or the correctness of the representations of the Company made in such certificates that the Warrant Agent receives.
(c) The Warrant Agent shall not have any duty to calculate or determine any required adjustments with respect to the Exercise Price or the kind and amount of securities or other property receivable by Holders upon the exercise of Warrants, nor to determine the accuracy or correctness of any such calculation.
(d) The Warrant Agent shall not (i) be liable for any recital or statement of fact contained herein or in the Warrant Certificates or for any action taken, suffered or omitted by it in good faith in the belief that any Warrant Certificate or any other document or any signature is genuine or properly authorized, (ii) be responsible for any failure of by the Company to comply with any of the Company's covenants its obligations contained in this Agreement or in the Warrant Certificates, (iii) be liable for any act or omission in connection with this Agreement except for its own gross negligence or willful misconduct (which gross negligence or willful misconduct must be determined by a final, non-appealable order, judgment, decree or ruling of a court of competent jurisdiction), or (iv) have any responsibility to determine whether a transfer of a Warrant complies with applicable securities laws.
(ce) The Warrant Agent is hereby authorized to accept instructions with respect to the performance of its duties hereunder solely on behalf of the Company from the Chief Executive Officer, the President, the Chief Financial Officer, or the Secretary or any Assistant Secretary of the Company and to apply to any such officer for written instructions (which will then be reasonably promptly given) and the Warrant Agent shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with the instructions of any such officer, except for its own gross negligence or willful misconduct, but in its discretion the Warrant Agent may in lieu thereof accept other evidence of such or may require such further or additional evidence as it may deem reasonable.
(f) The Warrant Agent may exercise any of the rights and powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys, agents or employees, provided reasonable care has been exercised in the selection and in the continued employment of any persons. The Warrant Agent shall not be under any obligation or duty to institute, appear in or defend any action, suit or legal proceeding in respect hereof, unless first indemnified to its satisfaction. The Warrant Agent shall promptly notify the Company in writing of any claim made or action, suit or proceeding instituted against or arising out of or in connection with this Agreement.
(g) The Company will take such action as may reasonably be required by the Warrant Agent in order to enable it to carry out or perform its duties under this Agreement.
(h) The Warrant Agent shall act solely as agent of the Company hereunder.
(i) The Warrant Agent may, at its own expense, consult at any time with legal counsel satisfactory to it (who may be legal counsel for the Company), and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder in respect of for any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(ej) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement compensation for the all services rendered by the Warrant Agent. The Agent hereunder as the Company shall also and the Warrant Agent may agree from time to time, and to reimburse the Warrant Agent for all expenses, taxes reasonable expenses incurred in connection with the execution and governmental charges and all other charges of any kind or nature incurred by the Warrant Agent in the performance administration of this Agreement.
Agreement (f) The Company shall including the reasonable compensation and expenses of its counsel), and further agrees to indemnify the Warrant Agent for, and hold it harmless against against, any and all liabilitiesloss, including judgmentsliability or expense incurred without gross negligence or willful misconduct on its part, costs and counsel fees, incurred arising out of or in connection with its performance the acceptance and administration of this AgreementAgreement (which gross negligence or willful misconduct must be determined by a final, non-appealable order, judgment, decree or ruling of a court of competent jurisdiction).
(k) No resignation or removal of the Warrant Agent and no appointment of a successor warrant agent shall become effective until the acceptance of appointment by the successor warrant agent as provided herein. The Warrant Agent may resign its duties and be discharged from all further duties and liability hereunder (except liability arising as a result of the Warrant Agent's ’s own gross negligence or bad faithwillful misconduct) after giving 60 days prior written notice to the Company. In no case shall The Company may remove the Warrant Agent be liable for specialupon written notice, indirect, incidental or consequential loss or damage of any kind whatsoever, even if and the Warrant Agent shall thereupon in like manner be discharged from all further duties and liabilities hereunder, except as aforesaid. Upon such resignation or removal, the Company shall appoint in writing a new warrant agent. If the Company fails to do so within a period of 30 days after it has been advised of the likelihood notified in writing of such loss or damage.
(g) The resignation by the resigning Warrant Agent or after such removal, then the resigning Warrant Agent or the Holder of any Warrant (if such Holder first submits his, her or its Warrant Certificate for inspection by the Company) may apply to any court of competent jurisdiction for the appointment of a new warrant agent, provided that, for purposes of this Agreement, the Company shall be under no obligation deemed to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish be the Warrant Agent until a new warrant agent is appointed. After acceptance in writing of such appointment by the new warrant agent, it shall be vested with reasonable security the same powers, rights, duties and indemnity responsibilities as if it had been originally named herein as the Warrant Agent. Not later than the effective date of any such appointment, the Company shall give notice thereof to the resigning or removed Warrant Agent. Failure to give any notice provided for in this subsection 14(k), however, or any costs and expenses which may be incurred in connection with such actiondefect therein, suit or legal proceeding, but this provision shall not affect the power legality or validity of the resignation of the Warrant Agent or the appointment of a new warrant agent, as the case may be. The Company shall, or shall cause the successor Warrant Agent to, deliver to take each Holder at such action Holder’s last address as shown on the register of Holders maintained by the Warrant Agent, notice of the appointment of the successor Warrant Agent and such successor Warrant Agent’s address for communication.
(l) Any corporation into which the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants new warrant agent may be enforced by merged or converted or any corporation resulting from any consolidation to which the Warrant Agent without the possession of or any of the Warrant Certificates new warrant agent shall be a party or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by corporation to which the Warrant Agent transfers substantially all of its corporate trust business shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(h) The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Warrants or other securities of the Company, or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, or otherwise act as fully and freely as though it were not a successor Warrant Agent under this Agreement without any further act, provided that such corporation (i) would be eligible for appointment as successor to the Warrant Agent under the provisions of subsection 14(k) above or (ii) is a shareholder, director, officer or employee wholly owned subsidiary of such the Warrant Agent. Nothing herein shall preclude the Any such successor Warrant Agent from acting shall promptly cause notice of its succession as Warrant Agent to be mailed (by first class mail, postage prepaid) to each Holder in any other capacity for the Company or for any other legal entityaccordance with Section 14 above.
Appears in 2 contracts
Sources: Warrant Agent Agreement (Grom Social Enterprises, Inc.), Warrant Agent Agreement (Grom Social Enterprises, Inc.)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, duties and the obligations imposed by this Warrant Agent hereby accepts such appointment, Agreement upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe Holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Warrant Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any Holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Holder of any Warrant Holder Certificate for any action taken in reliance upon on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent in the execution of this Warrant Agreement, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature reasonably incurred by the Warrant Agent in the performance execution of this Agreement.
(f) The Company shall Warrant Agreement and to indemnify the Warrant Agent and hold save it harmless against any and all liabilities, including judgments, reasonable costs and counsel fees, incurred for anything done or omitted by the Warrant Agent in connection with its performance the execution of this Agreement, Warrant Agreement except as a result of the Warrant Agent's its negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Holders of Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Warrant Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Warrant Agreement except for its own negligence or bad faith.
(i) The Warrant Agent shall not at any time be under any duty or responsibility to any Holder of any Warrant Certificate to make or cause to be made any adjustment of the Exercise Price or number of the Warrant Shares or other securities or property deliverable as provided in this Warrant Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto.
(j) The Warrant Agent shall be entitled to rely on the statements of the Company and the Holders, and shall be under no duty or responsibility with respect to any such statements.
(k) The Warrant Agent shall not be responsible for any failure of the Company to make any cash payment or to issue, transfer or deliver any shares of Common Stock or stock certificates or other common stock or property upon the exercise of any Warrant.
Appears in 2 contracts
Sources: Warrant Agreement (Abovenet Inc), Warrant Agreement (Abovenet Inc)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, upon the following terms and conditions by all of which the Company and every Warrant Holder, by acceptance of a Warrant, shall be bound:
(a) Statements contained in this Agreement and in the Warrant Certificates shall be taken as statements of the Company. The Warrant Agent assumes responsibility hereunder only for the correctness of any statement which describes the Warrant Agent and/or for action taken or to be taken by the Warrant Agent.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant Certificates.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement for the services rendered by the Warrant AgentAgent hereunder those fees to which the Warrant Agent is entitled as the Company's transfer agent and registrar. The Company shall also reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or nature incurred by the Warrant Agent in the performance of this Agreement.
(f) The Company shall indemnify the Warrant Agent and hold it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred in connection with its performance of this Agreement, except as a result of the Warrant Agent's negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(g) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(h) The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Warrants or other securities of the Company, or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant Agent. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
Appears in 2 contracts
Sources: Warrant Agreement (Ackeeox Corp), Warrant Agreement (Ackeeox Corp)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, duties and the Warrant Agent hereby accepts such appointment, ------------- obligations imposed by this Agreement upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe Holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant Certificates.
(c) Certificates to be complied with by the Company. The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any Holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) . The Warrant Agent shall incur no liability or responsibility to the Company or to any Holder of any Warrant Holder Certificate for any action taken in reliance upon on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) . The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement such compensation for the all services rendered by the Warrant Agent. The Company Agent in the execution of this Agreement as the parties shall also agree from time to time, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature reasonably incurred by the Warrant Agent in the performance execution of this Agreement.
(f) The Company shall Agreement and to indemnify the Warrant Agent and hold save it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred for anything done or omitted by the Warrant Agent in connection with its performance the execution of this Agreement, Agreement except as a result of the Warrant Agent's its negligence or bad faithwillful misconduct. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(g) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Holders of Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity satisfactory to the Warrant Agent for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in . No provision of this Agreement shall require the Warrant Certificates.
(h) Agent to expend or risk its own funds. The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity. The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own negligence or willful misconduct.
Appears in 2 contracts
Sources: Warrant Agreement (Covad Communications Group Inc), Warrant Agreement (Covad Communications Group Inc)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, duties and the Warrant Agent hereby accepts such appointment, obligations imposed by this Agreement upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe Holders, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The , and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates or Warrant Shares or payment or refund of the Exercise Price except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant Certificates.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of to any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(ec) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent in the execution of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature reasonably incurred by the Warrant Agent in the performance execution of this Agreement.
(f) The Company shall Agreement and to indemnify the Warrant Agent and hold save it harmless against any and all liabilities, including judgments, reasonable costs and counsel fees, incurred for anything done or omitted by the Warrant Agent in connection with its performance the execution of this Agreement, Agreement except as a result of the Warrant Agent's negligence its negligence, bad faith or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damagewillful misconduct.
(gd) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnitysecurity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders Holders, as their the respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(he) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(f) The Warrant Agent shall not at any time be under any duty or responsibility to any Holder or the Company to make or cause to be made any adjustment of the Exercise Price or number of the Warrant Shares or other securities or property deliverable as provided in this Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto.
Appears in 2 contracts
Sources: Warrant Agreement (Marvel Enterprises Inc), Warrant Agreement (Marvel Enterprises Inc)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes only the agent of the Company, duties and obligations expressly imposed by this Agreement and the Global Warrant Agent hereby accepts such appointmentCertificates, in each case upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Global Warrant Certificates shall be taken as statements of the Company. The , and the Warrant Agent assumes no responsibility hereunder only for the correctness accuracy of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. Except as expressly provided herein, the Warrant AgentAgent assumes no responsibility with respect to the execution, delivery or distribution of the Global Warrant Certificates.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Global Warrant CertificatesCertificates to be complied with by the Company, nor shall it at any time be under any duty or responsibility to make or cause to be made any calculation or adjustment in any Exercise Price or in the number of Shares issuable upon exercise of any Warrant, or to determine whether any facts exist that may require any such calculations or adjustments (including whether any calculation or adjustment required under the provisions of Section 12 hereof should be made), or have any responsibility or liability for the manner, method or amount of any such calculation or adjustment.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder holder of any Warrants for any action taken in reliance upon on any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties. From time to time, the Company may provide the Warrant Agent with instructions concerning the services performed by the Warrant Agent hereunder. In addition, at any time Warrant Agent may apply to any Appropriate Officer of the Company for instruction and may consult with legal counsel for the Warrant Agent (who may be an employee of the Warrant Agent) or the Company with respect to any matter arising in connection with the services to be performed by the Warrant Agent under this Agreement. The Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by the Company for any action taken or omitted by the Warrant Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel; provided, that each of the Warrant Agent and its agents and subcontractors shall not be released from liability or indemnified with respect to costs, expenses, losses and damages incurred or suffered as a result of, or arising out of, their gross negligence, bad faith or willful misconduct (each as determined by a final, non-appealable judgment of a court of competent jurisdiction). The Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from the Company.
(ed) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent under this Agreement in accordance with the associated fee schedule delivered by the Warrant Agent to the Company on or around the date hereof, or such other fee schedule agreed upon between the Company and the Warrant Agent. The Company shall also , and to reimburse the Warrant Agent upon demand for all reasonable and documented out-of-pocket expenses, taxes including counsel fees and governmental charges and all other charges of any kind or nature disbursements, incurred by the Warrant Agent in the preparation, administration, delivery, execution and amendment of this Agreement and the performance of its duties under this Agreement. The Company covenants and agrees to indemnify the Warrant Agent and to hold it harmless against any costs, expenses (including reasonable fees and expenses of its legal counsel), losses or damages, which may be paid, incurred or suffered by or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from its actions as Warrant Agent pursuant hereto; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result of, or arising out of, its gross negligence, bad faith, or willful misconduct (each as determined by a final, non-appealable judgment of a court of competent jurisdiction). The costs and expenses incurred by the Warrant Agent in enforcing the right to indemnification shall be paid by the Company except to the extent that it is determined by a final, non-appealable judgment of a court of competent jurisdiction that the Warrant Agent is not entitled to indemnification due to its gross negligence, bad faith or willful misconduct. Notwithstanding the foregoing, the Company shall not be responsible for any settlement made without its written consent. Notwithstanding anything contained herein to the contrary, the Warrant Agent’s aggregate liability during any term of this Agreement with respect to, arising from, or arising in connection with this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Company to Warrant Agent as fees and charges, but not including reimbursable expenses, during the 12 months immediately preceding the event for which recovery from Warrant Agent is being sought.
(e) The Company shall provide an initial funding of $1,000 for the purpose of issuing cash in lieu of fractional Shares pursuant to Section 13 hereof. From time to time thereafter, Computershare may request additional funding to cover payments in connection with fractional Shares. Computershare shall have no obligation to make payments in connection with fractional Shares unless the Company shall have provided the necessary funds to pay in full all amounts due and payable with respect thereto. Upon request of the Company, Computershare shall provide to the Company on a timely basis information as the Company may reasonably request in connection with the cash paid in lieu of fractional Shares pursuant to this Agreement including, but not limited to, the remaining cash balance for future payments.
(f) The Company shall indemnify provide opinions of counsel (i) on or prior to the Warrant Agent and hold it harmless against any and all liabilitiesdate hereof, including judgments, costs and counsel fees, incurred to set up a reserve in connection with its performance the issuance of the Warrants, stating that the Warrants, when issued in accordance with the terms and conditions of this Agreement, except as will be exempt from registration under the Securities Act, and all appropriate state securities law filings will have been made with respect to the Warrants and (ii) on or prior to the first date that the Warrants shall be exercisable in accordance with Section 7 hereof, to set up a result reserve in connection with the issuance of the Warrant Agent's negligence or bad faith. In Shares, stating that as of the date thereof (x) the Common Shelf Registration Statement remains effective, (y) no case shall stop order suspending effectiveness of the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent Common Shelf Registration Statement has been advised issued by the U.S. Securities and Exchange Commission, and (z) that the Shares, when issued and sold in accordance with the terms and conditions of the likelihood of such loss or damagethis Agreement, will be validly issued, fully paid and non-assessable.
(g) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense or liability unless the Company or one or more Warrant Holders shall furnish registered holders of Warrants furnishes the Warrant Agent with reasonable security and indemnity satisfactory to the Warrant Agent for any costs and or expenses which that may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnityincurred. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates Warrants or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of or judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(h) The To the extent legally permissible, the Warrant Agent Agent, and any shareholdermember, stockholder, affiliate, director, officer or employee of the Warrant Agent thereof, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be is interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were was not the Warrant Agent under this Agreement Agreement, or a shareholdermember, stockholder director, officer or employee of such the Warrant Agent, as the case may be. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(i) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything that it may do or refrain from doing in connection with this Agreement except in connection with its own gross negligence, bad faith or willful misconduct (each as determined by a final, non-appealable judgment of a court of competent jurisdiction).
(j) The Company shall perform, acknowledge and deliver or cause to be performed, acknowledged and delivered all such further and other acts, documents, instruments and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing by the Warrant Agent of the provisions of this Agreement.
(k) The Warrant Agent shall not be under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except the due and validly authorized execution hereof by the Warrant Agent) or in respect of the validity or execution of any Global Warrant Certificate (except its due and validly authorized countersignature thereof), nor shall the Warrant Agent by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of the Shares to be issued pursuant to this Agreement or any Warrant or as to whether the Shares will when issued be validly issued, fully paid and nonassessable or as to the Exercise Price or the number of Shares issuable upon exercise of any warrant.
(l) Whenever in the performance of its duties under this Agreement the Warrant Agent deems it necessary or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action hereunder, the Warrant Agent is hereby authorized and directed that it may accept instructions with respect to the performance of its duties hereunder from an Appropriate Officer and to apply to such Appropriate Officer for advice or instructions in connection with its duties, and such instructions shall be full authorization and protection to the Warrant Agent and, absent gross negligence, bad faith or willful misconduct (each as determined by a final, non-appealable judgment of a court of competent jurisdiction), the Warrant Agent shall not be liable for any action taken, suffered to be taken, or omitted to be taken by it in accordance with instructions of any such Appropriate Officer or in reliance upon any statement signed by any one of such Appropriate Officers of the Company with respect to any fact or matter (unless other evidence in respect thereof is herein specifically prescribed) which may be deemed to be conclusively proved and established by such signed statement.
(m) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights if it believes that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured to it.
(n) If the Warrant Agent shall receive any notice or demand (other than notice of or demand for exercise of Warrants) addressed to the Company by any Holder pursuant to the provisions of the Warrants, the Warrant Agent shall promptly forward such notice or demand to the Company.
(o) The Warrant Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys, accountants, agents or other experts, and the Warrant Agent will not be answerable or accountable for any act, default, neglect or misconduct of any such attorneys or agents or for any loss to the Company or the Holders resulting from any such act, default, neglect or misconduct, absent gross negligence, bad faith or willful misconduct (each as determined by a final non-appealable judgment of a court of competent jurisdiction) in the selection and continued employment thereof.
(p) The Warrant Agent will not be under any duty or responsibility to ensure compliance with any applicable federal or state securities laws in connection with the issuance, transfer or exchange of the Warrants.
(q) The Warrant Agent shall have no duties, responsibilities or obligations as the Warrant Agent except those which are expressly set forth herein, and in any modification or amendment hereof to which the Warrant Agent has consented in writing, and no duties, responsibilities or obligations shall be implied or inferred. Without limiting the foregoing, unless otherwise expressly provided in this Agreement, the Warrant Agent shall not be subject to, nor be required to comply with, or determine if any Person has complied with, the Warrants or any other agreement between or among the parties hereto, even though reference thereto may be made in this Agreement, or to comply with any notice, instruction, direction, request or other communication, paper or document other than as expressly set forth in this Agreement. The Warrant Agent shall have no obligation to read or be familiar with the terms of the Settlement or be bound thereby. Any conflict between the terms of the Settlement and the terms hereof as they relate to the Warrant Agent shall be governed by the terms hereof.
(r) Notwithstanding anything to the contrary contained herein, the Warrant Agent will not be liable for any delays or failures in performance resulting from acts beyond its reasonable control including, without limitation, acts of God, terrorist acts, shortage of supply, breakdowns or malfunctions, interruptions or malfunction of computer facilities, or loss of data due to power failures or mechanical difficulties with information storage or retrieval systems, labor difficulties, war, or civil unrest.
(s) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, or is for any reason unsure as to what action to take hereunder, the Warrant Agent shall notify the Company in writing as soon as practicable, and upon delivery of such notice may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company or any Holder or other Person for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of Warrant Agent.
(t) The provisions of this Section 17 shall survive the termination of this Agreement, the exercise or expiration of the Warrants and the resignation or removal of the Warrant Agent.
(u) No provision of this Agreement shall be construed to relieve the Warrant Agent from liability for its own gross negligence, bad faith or its willful misconduct (each as determined by a final non-appealable order, judgment, ruling or decree of a court of competent jurisdiction).
Appears in 2 contracts
Sources: Warrant Agreement, Warrant Agreement (Aveo Pharmaceuticals Inc)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as the agent of the Company, Company and the Warrant Agent hereby accepts such appointment, appointment upon the following terms and conditions by all of which the Company and every Company, as well as each Warrant Holder, by acceptance of a Warrantsuch Warrant Holder’s Warrants, shall be bound:
(a) Statements contained in this Agreement and in the Warrant Certificates shall be taken as statements of the Company. The Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which of the same except such as describes the Warrant Agent and/or or for action taken or to be taken by the Warrant Agent.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's ’s covenants contained in this Agreement or in the Warrant CertificatesWarrants.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder in respect of any action reasonably taken, suffered or omitted by it hereunder in good faith and or in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action reasonably taken in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent pursuant to this Agreement, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or nature incurred by the Warrant Agent in connection with services rendered by the performance of Warrant Agent pursuant to this Agreement.
(f) The Company shall Agreement and to indemnify the Warrant Agent and hold save it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred in connection with its performance of services rendered by the Warrant Agent pursuant to this Agreement, except in each case as a result of the Warrant Agent's negligence ’s gross negligence, bad faith or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damagewillful misconduct.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which that may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, may reasonably consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates Warrants or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests interest may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent and any shareholderstockholder, director, officer or employee of the Warrant Agent may may, subject to compliance with applicable laws, buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall not be responsible for calculating conversion prices but shall rely upon prompt and accurate information provided to them by either the presenting party, broker, DTCC and verified with the Company.
Appears in 2 contracts
Sources: Warrant Agreement (Eastside Distilling, Inc.), Warrant Agreement (Eastside Distilling, Inc.)
Warrant Agent. The Company hereby appoints Company’s transfer agent for its Common Stock and Warrants, *[____________], shall serve as warrant agent under the Warrant Agent (the “Warrant Agent”). Upon thirty (30) days’ notice to act as the agent of Holder, the Company, and the Warrant Agent hereby accepts such appointment, upon the following terms and conditions by all of Company may appoint a new warrant agent. Any corporation into which the Company and every Warrant Holder, by acceptance of a Warrant, or any new warrant agent may be merged or any corporation resulting from any consolidation to which the Company or any new warrant agent shall be bound:
(a) Statements contained in this Agreement and in a party or any corporation to which the Company or any new warrant agent transfers substantially all of its corporate trust or shareholders services business shall be a successor warrant agent under the Warrant Certificates without any further act. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be taken mailed (by first class mail, postage prepaid) to the Holder at the Holder’s last address as statements of shown on the CompanyWarrant Register. The Warrant Agent assumes responsibility hereunder only for is hereby authorized to countersign and to deliver, in accordance with the correctness terms of any statement which describes this Agreement, the Warrant Agent and/or for action taken or Shares required to be taken issued pursuant to the provisions of Section 6, and the Company, whenever required by the Warrant Agent.
(b) , will supply the Warrant Agent with certificates duly executed on behalf of the Company for such purpose. The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in liable under this Agreement or in the Warrant Certificates.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel only for the Company)its own negligence, willful misconduct and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) bad faith. The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement for the services rendered by the Warrant Agent. The Company shall also reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or nature incurred by the Warrant Agent in the performance of this Agreement.
(f) The Company shall indemnify the Warrant Agent and hold save it harmless against any and all liabilities, including judgments, costs and reasonable counsel fees, incurred for anything done or omitted by the Warrant Agent in connection with its performance the execution of this Agreement, Agreement except as a result of the Warrant Agent's negligence ’s negligence, willful misconduct or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(g) The Warrant Agent shall be under have no obligation responsibility with respect to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power validity of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any Warrant (except its countersignature thereof), nor shall it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Warrant. The Warrant Agent hereby accepts the agency established by this Agreement and agrees to perform the same upon the terms and conditions herein set forth and among other things, shall account promptly to the company with respect to the Warrants may be enforced exercised and concurrently account for, and pay to the Company, all moneys received by the Warrant Agent without for the possession purchase of any shares of the Warrant Certificates or Company’s Common stock through the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the exercise of Warrants. The Warrant Agent shall be brought in its name as Warrant Agent, and any recovery keep copies of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(h) The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Warrants or other securities of the Company, or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee available for inspection by holders of such Warrant Agent. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entityWarrants during normal business hours.
Appears in 2 contracts
Sources: Warrant Agreement, Warrant Agreement (NXT-Id, Inc.)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as the agent of the Company, Company and the Warrant Agent hereby accepts such appointment, appointment upon the following terms and conditions by all of which the Company and every Warrant Holder, by acceptance of a Warranthis Warrants, shall be bound:
(a) Statements contained in this Agreement and in the Warrant Certificates shall be taken as statements of the Company. The Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which of the same except such as describes the Warrant Agent and/or or for action taken or to be taken by the Warrant Agent.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant Certificates.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable professional care and diligence, as is common for Warrant Agents, in the selection and continued employment performance of such counselits duties.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent in the execution of this Agreement as set out in Exhibit B to reimburse the Warrant Agent for all pre-approved expenses, taxes and governmental charges and all other charges of any kind or nature incurred by the Warrant Agent in the performance execution of this Agreement.
(f) The Company shall Agreement and to indemnify the Warrant Agent and hold save it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred in connection with its performance of for this Agreement, Agreement except as a result of the Warrant Agent's negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests interest may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily pecuniary interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
Appears in 2 contracts
Sources: Warrant Agreement (HyperSpace Communications, Inc.), Warrant Agreement (HyperSpace Communications, Inc.)
Warrant Agent. The Company hereby appoints Warrant Agent undertakes the duties and obligations imposed by this Agreement (and no implied duties or obligations shall be read into this Agreement against the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, Agent) upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it of its own selection (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided . The Warrant Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or through agents or attorneys and the Warrant Agent shall have exercised reasonable not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care in the selection and continued employment of such counselby it hereunder.
(d) The Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Warrant Agent and conforming to the requirements of this Agreement. The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument (whether in its original or facsimile form) believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement such compensation for the all services rendered by the Warrant Agent. The Agent in the administration and execution of this Agreement as the Company and the Warrant Agent shall also agree in writing to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the performance execution of this Agreement.
Agreement (fincluding fees and expenses of its counsel) The Company shall and to indemnify the Warrant Agent (and hold any predecessor Warrant Agent) and save it harmless against any and all claims (whether asserted by the Company, a holder or any other person), damages, losses, expenses (including taxes other than taxes based on the income of the Warrant Agent), liabilities, including judgments, costs and counsel feesfees and expenses, incurred for anything done or omitted by the Warrant Agent in connection with its performance the execution of this Agreement, Agreement except as a result of the Warrant Agent's its negligence or bad faithwillful misconduct. In no case The provisions of this Section 15(e) shall survive the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised expiration of the likelihood Warrants and the termination of such loss or damagethis Agreement.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered holders of Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity satisfactory to it for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholder, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything that it may do or refrain from doing in connection with this Agreement except for its own negligence or willful misconduct. The Warrant Agent shall not be liable for any error of judgment made in good faith by it, unless it shall be proved that the Warrant Agent was negligent in ascertaining the pertinent facts. Notwithstanding anything in this Agreement to the contrary, in no event shall the Warrant Agent be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of the loss or damage and regardless of the form of the action.
(i) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of any Warrant Certificate to make or cause to be made any adjustment of the Exercise Price or number of the Warrant Shares or other securities or property deliverable as provided in this Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto.
(j) Notwithstanding anything in this Agreement to the contrary, neither the Company nor the Warrant Agent shall have any liability to any holder of a Warrant Certificate or other Person as a result of its inability to perform any of its obligations under this Agreement by reason of any preliminary or permanent injunction or other order, decree or ruling issued by a court of competent jurisdiction or by a governmental, regulatory or administrative agency or commission, or any statute, rule, regulation or executive order promulgated or enacted by any governmental authority prohibiting or otherwise restraining performance of such obligation; provided that (i) the Company must use its reasonable best efforts to have any such order, decree or ruling lifted or otherwise overturned as soon as possible and (ii) nothing in this Section 15(j) shall affect the Company’s obligation under Section 6(d) to use its best efforts to have a registration statement in effect covering the Warrant Shares issuable upon exercise of the Warrants and to maintain a current prospectus relating to those Warrant Shares.
(k) Any application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent under this Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Warrant Agent shall not be liable for any action taken by, or omission of, the Warrant Agent in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any officer of the Company actually receives such application, unless any such officer shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Warrant Agent shall have received written instructions in response to such application specifying the action to be taken or omitted.
(l) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights.
(m) In addition to the foregoing, the Warrant Agent shall be protected and shall incur no liability for, or in respect of, any action taken or omitted by it in connection with its administration of this Agreement if such acts or omissions are not the result of the Warrant Agent’s reckless disregard of its duty, gross negligence or willful misconduct and are in reliance upon (i) the proper execution of the certification concerning beneficial ownership appended to the form of assignment and the form of the election attached hereto unless the Warrant Agent shall have actual knowledge that, as executed, such certification is untrue, or (ii) the non-execution of such certification including, without limitation, any refusal to honor any otherwise permissible assignment or election by reason of such non-execution.
Appears in 2 contracts
Sources: Warrant Agreement (Overture Acquisition Corp.), Warrant Agreement (Overture Acquisition Corp.)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, duties and the Warrant Agent hereby accepts such appointment, obligations imposed by this Agreement upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties. The Warrant Agent need not investigate any fact or matter stated in such document.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent in the execution of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the performance execution of this Agreement.
(f) . The Company shall indemnify the Warrant Agent and its agents, employees, officers, directors and shareholders for, and hold it same harmless against against, any and all liabilitieslosses, liabilities or expenses (including judgments, costs without limitation reasonable attorney's fees and counsel fees, expenses) incurred by it arising out of or in connection with the acceptance or administration of its duties under this Warrant Agreement, including the costs and expenses of enforcing this Warrant Agreement against the Company and defending itself against any claim (whether asserted by the Company or any Holder or any other person) or liability in connection with the exercise or performance of this Agreementany of its powers or duties hereunder, except as a result of to the Warrant Agent's extent any such loss, liability or expense may be attributable to its negligence or bad faith. In no case The Warrant Agent shall notify the Company promptly of any claim for which it may seek indemnity. Failure by the Warrant Agent be liable for specialto so notify the Company shall not relieve the Company of its obligations hereunder. At the Warrant Agent's sole discretion, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Company shall defend the claim and the Warrant Agent has been advised of shall cooperate in the likelihood defense at the Company's expense. The Warrant Agent may have separate counsel and the Company shall pay the reasonable fees and expenses of such loss or damagecounsel. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders registered holders of Warrants shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own negligence or bad faith.
(i) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of any Warrant Certificate to make or cause to be made any adjustment of the Exercise Price or number of the Warrant Shares or other securities or property deliverable as provided in this Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto.
Appears in 2 contracts
Sources: Warrant Agreement (Charles River Laboratories Holdings Inc), Warrant Agreement (Merrill Corp)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, duties and the Warrant Agent hereby accepts such appointment, obligations imposed by this Agreement upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent in the execution of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the performance execution of this Agreement.
(f) . The Company shall indemnify the Warrant Agent and hold it harmless against any and all liabilitieslosses, including judgments, costs and counsel fees, liabilities or expenses incurred by it arising out of or in connection with the acceptance or administration of its duties under this Warrant Agreement, including the costs and expenses of enforcing this Agreement against the Company and defending itself against any claim (whether asserted by the Company or any holder or any other person) or liability in connection with the exercise or performance of this Agreementany of its powers or duties hereunder, except as a result of to the Warrant Agent's extent any such loss, liability or expense may be attributable to its gross negligence or bad faith. In no case The Warrant Agent shall notify the Company promptly of any claim for which it may seek indemnity. Failure by the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage to so notify the Company shall not relieve the Company of any kind whatsoever, even if its obligations hereunder. The Company shall defend the claim and the Warrant Agent has been advised of shall cooperate in the likelihood defense. The Warrant Agent may have separate counsel and the Company shall pay the reasonable fees and expenses of such loss counsel. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld, conditioned or damagedelayed.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders registered holders of Warrants shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own gross negligence or bad faith.
(i) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of any Warrant Certificate to make or cause to be made any adjustment of the Exercise Price or number of the Warrant Shares or other securities or property deliverable as provided in this Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto.
(j) The Warrant Agent shall not be required to risk or expend its own funds on the performance of it obligations and duties hereunder.
Appears in 2 contracts
Sources: Warrant Agreement (Grande Communications Holdings, Inc.), Warrant Agreement (Barneys New York Inc)
Warrant Agent. The Company hereby appoints Warrant Agent undertakes the duties and obligations imposed by this Agreement (and no implied duties or obligations shall be read into this Agreement against the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, Agent) upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except to the extent that any such statements describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as otherwise provided herein.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it of its own selection (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided . The Warrant Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or through agents or attorneys and the Warrant Agent shall have exercised reasonable not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care in the selection and continued employment of such counselby it hereunder.
(d) The Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Warrant Agent and conforming to the requirements of this Agreement. The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument (whether in its original or facsimile form) believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company hereby agrees to (A) pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement such compensation for the all services rendered by the Warrant Agent. The Agent in the administration and execution of this Agreement as the Company and the Warrant Agent shall also agree to in writing, (B) reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the performance execution of this Agreement.
Agreement (fincluding fees and expenses of its counsel) The Company shall and (C) indemnify the Warrant Agent (and any predecessor Warrant Agent) and hold it harmless against any and all liabilitiesclaims (whether asserted by the Company, a holder or any other person), damages, losses, expenses (including taxes other than taxes based on the income of the Warrant Agent) and liabilities (including judgments, costs and counsel feesfees and expenses), suffered or incurred by the Warrant Agent for anything done or omitted by the Warrant Agent in connection with its performance the execution of this Agreement, Agreement except as a result of the Warrant Agent's its negligence or bad faithwillful misconduct. In no case The provisions of this Section 15(e) shall survive the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised expiration of the likelihood Warrants and the termination of such loss or damagethis Agreement.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered holders of Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity satisfactory to it for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own negligence or willful misconduct. The Warrant Agent shall not be liable for any error of judgment made in good faith by it, unless it shall be proved that the Warrant Agent was negligent in ascertaining the pertinent facts. Notwithstanding anything in this Agreement to the contrary, in no event shall the Warrant Agent be liable for any special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of the loss or damage and regardless of the form of the action.
(i) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of any Warrant Certificate to make or cause to be made any adjustment of the Exercise Price or number of the Warrant Shares or other securities or property deliverable as provided in this Agreement, or to determine whether any facts exist which may require any such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto.
(j) Notwithstanding anything in this Agreement to the contrary, neither the Company nor the Warrant Agent shall have any liability to any holder of a Warrant Certificate or other Person as a result of its inability to perform any of its obligations under this Agreement by reason of any preliminary or permanent injunction or other order, decree or ruling issued by a court of competent jurisdiction or by a governmental, regulatory or administrative agency or commission, or any statute, rule, regulation or executive order promulgated or enacted by any governmental authority prohibiting or otherwise restraining performance of such obligation; provided, however that (A) the Company must use its reasonable best efforts to have any such order, decree or ruling lifted or otherwise overturned as soon as possible and (B) nothing in this Section 15(j) shall affect the Company's obligation under Section 6(d) hereof to use its best efforts to have a registration statement in effect covering the Warrant Shares issuable upon exercise of the Warrants and to maintain a current prospectus relating to those Warrant Shares.
(k) Any application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent under this Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Warrant Agent shall not be liable for any action taken by, or omission of, the Warrant Agent in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any officer of the Company actually receives such application, unless any such officer shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Warrant Agent shall have received written instructions in response to such application specifying the action to be taken or omitted.
(l) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights.
(m) In addition to the foregoing, the Warrant Agent shall be protected and shall incur no liability for, or in respect of, any action taken or omitted by it in connection with its administration of this Agreement if such acts or omissions are not the result of the Warrant Agent's reckless disregard of its duty, gross negligence or willful misconduct and are in reliance upon (A) the proper execution of the certification concerning beneficial ownership appended to the form of assignment and the form of the election attached hereto unless the Warrant Agent shall have actual knowledge that, as executed, such certification is untrue, or (B) the non-execution of such certification including, without limitation, any refusal to honor any otherwise permissible assignment or election by reason of such non-execution.
Appears in 2 contracts
Sources: Warrant Agreement (Hicks Acquisition CO I Inc.), Warrant Agreement (Hicks Acquisition CO I Inc.)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, duties and the Warrant Agent hereby accepts such appointment, obligations imposed by this Agreement upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent in the execution of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the performance execution of this Agreement.
(f) . The Company shall indemnify the Warrant Agent and hold it harmless against any and all liabilitieslosses, including judgments, costs and counsel fees, liabilities or expenses incurred by it arising out of or in connection with the acceptance or administration of its duties under this Warrant Agreement, including the costs and expenses of enforcing this Warrant Agreement against the Company and defending itself against any claim (whether asserted by the Company or any Holder or any other person) or liability in connection with the exercise or performance of this Agreementany of its powers or duties hereunder, except as a result of to the Warrant Agent's extent any such loss, liability or expense may be attributable to its negligence or bad faith. In no case The Warrant Agent shall notify the Company promptly of any claim for which it may seek indemnity. Failure by the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage to so notify the Company shall not relieve the Company of any kind whatsoever, even if its obligations hereunder. The Company shall defend the claim and the Warrant Agent has been advised of shall cooperate in the likelihood defense. The Warrant Agent may have separate counsel and the Company shall pay the reasonable fees and expenses of such loss or damagecounsel. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders registered holders of Warrants shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(h) The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Warrants or other securities of the Company, or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant Agent. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.the
Appears in 2 contracts
Sources: Warrant Agreement (Osullivan Industries Holdings Inc), Warrant Agreement (Instron Lawrence Corp)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as the agent of the Company, Company and the Warrant Agent hereby accepts such appointment, appointment upon the following terms and conditions by all of which the Company and every Warrant Holder, by acceptance of a Warranthis Warrant Certificates, shall be bound:
(a) Statements contained in this Agreement and in the Warrant Certificates Certificate shall be taken as statements of the Company. The Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which of the same except such as describes the Warrant Agent and/or or for action taken or to be taken by the Warrant Agent.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's ’s covenants contained in this Agreement or in the Warrant Certificates.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent in the execution of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or nature incurred by the Warrant Agent in the performance execution of this Agreement.
(f) The Company shall Agreement and to indemnify the Warrant Agent and hold save it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred in connection with its performance of for this Agreement, Agreement except as a result of the Warrant Agent's ’s gross negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental faith or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damagewillful misconduct.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests interest may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
Appears in 2 contracts
Sources: Warrant Agreement (Healthy Fast Food Inc), Warrant Agreement (Healthy Fast Food Inc)
Warrant Agent. The Company hereby appoints Company’s transfer agent for its Common Stock and Warrants, Corporate Stock Transfer, Inc., shall serve as warrant agent under the Warrant Agent (the “Warrant Agent”). Upon thirty (30) days’ notice to act as the agent of Holder, the Company, and the Warrant Agent hereby accepts such appointment, upon the following terms and conditions by all of Company may appoint a new warrant agent. Any corporation into which the Company and every Warrant Holder, by acceptance of a Warrant, or any new warrant agent may be merged or any corporation resulting from any consolidation to which the Company or any new warrant agent shall be bound:
(a) Statements contained in this Agreement and in a party or any corporation to which the Company or any new warrant agent transfers substantially all of its corporate trust or shareholders services business shall be a successor warrant agent under the Warrant Certificates without any further act. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be taken mailed (by first class mail, postage prepaid) to the Holder at the Holder’s last address as statements of shown on the CompanyWarrant Register. The Warrant Agent assumes responsibility hereunder only for is hereby authorized to countersign and to deliver, in accordance with the correctness terms of any statement which describes this Agreement, the Warrant Agent and/or for action taken or Shares required to be taken issued pursuant to the provisions of Section 6, and the Company, whenever required by the Warrant Agent.
(b) , will supply the Warrant Agent with certificates duly executed on behalf of the Company for such purpose. The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in liable under this Agreement or in the Warrant Certificates.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel only for the Company)its own negligence, willful misconduct and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) bad faith. The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement for the services rendered by the Warrant Agent. The Company shall also reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or nature incurred by the Warrant Agent in the performance of this Agreement.
(f) The Company shall indemnify the Warrant Agent and hold save it harmless against any and all liabilities, including judgments, costs and reasonable counsel fees, incurred for anything done or omitted by the Warrant Agent in connection with its performance the execution of this Agreement, Agreement except as a result of the Warrant Agent's negligence ’s negligence, willful misconduct or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(g) The Warrant Agent shall be under have no obligation responsibility with respect to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power validity of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any Warrant (except its countersignature thereof), nor shall it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Warrant. The Warrant Agent hereby accepts the agency established by this Agreement and agrees to perform the same upon the terms and conditions herein set forth and among other things, shall account promptly to the company with respect to the Warrants may be enforced exercised and concurrently account for, and pay to the Company, all moneys received by the Warrant Agent without for the possession purchase of any shares of the Warrant Certificates or Company’s Common stock through the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the exercise of Warrants. The Warrant Agent shall be brought in its name as Warrant Agent, and any recovery keep copies of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(h) The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Warrants or other securities of the Company, or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee available for inspection by holders of such Warrant Agent. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entityWarrants during normal business hours.
Appears in 2 contracts
Sources: Warrant Agreement (Magnegas Corp), Purchase Agreement (Magnegas Corp)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, duties and the Warrant Agent hereby accepts such appointment, obligations imposed by this Agreement upon the following terms and conditions conditions, by all of which each Issuer and the Company and every Warrant Holderholders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of each Issuer and the Company. The Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such statements as describe the Warrant Agent and/or for or action taken or to be taken by it. Except as herein otherwise provided, the Warrant AgentAgent assumes no responsibility with respect to the execution, delivery or distribution of the Warrant Certificates.
(b) The Warrant Agent shall not be responsible for any failure of the Company any Issuer to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by any Issuer, nor shall the Warrant Agent at any time be under any duty or responsibility to any holder of a Warrant to make or cause to be made any adjustment in the Exercise Price or in the number of Offered Securities issuable upon exercise of the Warrants (except as instructed by the relevant Issuer), or to determine whether any facts exist which may require any such adjustments, or with respect to the nature or extent of or method employed in making any such adjustments when made.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), relevant Issuer) and the Warrant Agent shall incur no liability or responsibility to the Company relevant Issuer or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company any Issuer or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company Each Issuer agrees (i) to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent under this Agreement; (ii) to reimburse the Warrant Agent upon demand for all reasonable out-of-pocket expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the performance execution of its duties under this Agreement.
; and (fiii) The Company shall to indemnify the Warrant Agent and hold it harmless against any and all liabilitieslosses, liabilities and expenses, including judgments, costs and counsel fees, incurred for anything done or omitted by the Warrant Agent arising out of or in connection with its performance of this Agreement, except as a result of the Warrant Agent's its negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company relevant Issuer or one or more registered holders of Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnityincurred. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of or judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent thereof, may buy, sell or deal in any of the Warrants or other securities of the Company, each Issuer or become pecuniarily interested in any transaction in which the Company an Issuer may be interested, or contract with or lend money to the Company, an Issuer or otherwise act as fully and freely as though it were not the Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company an Issuer or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for each Issuer, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement, except for its own negligence or bad faith.
(i) Each Issuer agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement.
(j) The Warrant Agent shall not be under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except the due execution hereof by the Warrant Agent) or in respect of the validity or execution of any Warrant Certificate (except its countersignature thereof); nor shall the Warrant Agent by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of the Offered Securities to be issued pursuant to this Agreement or any Warrant Certificate or as to whether the Offered Securities will, when issued, be validly issued, fully paid and nonassessable or as to the Exercise Price or the number of Offered Securities issuable upon exercise of any Warrant.
(k) The Warrant Agent is hereby authorized and directed to accept instructions with respect to the performance of its duties hereunder from any Authorized Signatory and to apply to such officers for advice or instructions in connection with its duties, and shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions of any such officer or in good faith reliance upon any statement signed by any one of such officers of the relevant Issuer with respect to any fact or matter (unless other evidence in respect thereof is herein specifically prescribed) which may be deemed to be conclusively proved and established by such signed statement.
Appears in 2 contracts
Sources: Warrant Agreement (Aegon Funding Co LLC), Warrant Agreement (Aegon Nv)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, duties and the Warrant Agent hereby accepts such appointment, obligations expressly imposed by this Agreement upon the following terms and conditions conditions, and no implied duties or obligations shall be read into this Agreement against the Warrant Agent, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The , and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it of its own selection (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent may conclusively rely upon and shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument (whether in its original or facsimile form) believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent such compensation as shall be agreed between the amount(s) described in Schedule A to this Agreement Company and the Warrant Agent for the all services rendered by the Warrant Agent. The Company shall also Agent in the execution of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in connection with the performance execution and administration of its duties under this Agreement.
(f) The Company shall Agreement and to fully indemnify the Warrant Agent and hold save it harmless against any and all liabilities, claims, damages, losses and expenses including judgments, costs and reasonable counsel feesfees and expenses, incurred for anything done or omitted by the Warrant Agent in connection with the execution and administration of its performance duties under this Agreement except as determined by a court of competent jurisdiction to have been caused by its gross negligence or willful misconduct. The provisions of this Section 19(e) shall survive the termination of this Agreement, except as a result of the Warrant Agent's negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered holders of Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity satisfactory to it for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnityincurred. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent thereof, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof and no duties shall be inferred or implied against the Warrant Agent. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own gross negligence or willful misconduct.
(i) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of is rights if there shall be reasonable grounds for believing repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured to it.
Appears in 2 contracts
Sources: Warrant Agreement (General Electric Co), Warrant Agreement (General Electric Co)
Warrant Agent. The Company hereby appoints Warrant Agent undertakes the duties and obligations imposed by this Agreement (and no implied duties or obligations shall be read into this Agreement against the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, Agent) upon the following terms and conditions by conditions, all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it of its own selection (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided . The Warrant Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Warrant Agent shall have exercised reasonable not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care in the selection and continued employment of such counselby it hereunder.
(d) In the absence of bad faith on its part, the Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Warrant Agent and conforming to the requirements of this Agreement. The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument (whether in its original or facsimile form) believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement such compensation for the all services rendered by the Warrant Agent. The Agent in the administration and execution of this Agreement as the Company and the Warrant Agent shall also agree in writing and to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the performance execution of this Agreement (including reasonable fees and expenses of its counsel) and to indemnify the Warrant Agent (and any predecessor Warrant Agent) and save it harmless against any and all claims (whether asserted by the Company, a holder or any other person), damages, losses, expenses (including taxes other than taxes based on the income of the Warrant Agent), liabilities, including judgments, costs and reasonable counsel fees and expenses, for anything done or omitted by the Warrant Agent in the execution of this Agreement except as a result of its negligence or willful misconduct. The provisions of this Section 10(e) shall survive the expiration of the Warrants and the termination of this Agreement.
(f) The Company shall indemnify the Warrant Agent and hold it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred in connection with its performance of this Agreement, except as a result of the Warrant Agent's negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(g) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered holders of Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity reasonably satisfactory to it for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own negligence or willful misconduct. The Warrant Agent shall not be liable for any error of judgment made in good faith by it, unless it shall be proved that the Warrant Agent was negligent in ascertaining the pertinent facts. Notwithstanding anything in this Agreement to the contrary, in no event shall the Warrant Agent be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of the loss or damage and regardless of the form of the action.
(i) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of any Warrant Certificate to make or cause to be made any adjustment of the Exercise Price or number of the Warrant Shares or other securities or property deliverable as provided in this Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto.
(j) Notwithstanding anything in this Agreement to the contrary, neither the Company nor the Warrant Agent shall have any liability to any holder of a Warrant Certificate or other Person as a result of its inability to perform any of its obligations under this Agreement by reason of any preliminary or permanent injunction or other order, decree or ruling issued by a court of competent jurisdiction or by a governmental, regulatory or administrative agency or commission, or any statute, rule, regulation or executive order promulgated or enacted by any governmental authority prohibiting or otherwise restraining performance of such obligation; provided that the Company must use its reasonable best efforts to have any such order, decree or ruling lifted or otherwise overturned as soon as possible.
(k) Any application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent under this Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Warrant Agent shall not be liable for any action taken by, or omission of, the Warrant Agent in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any officer of the Company actually receives such application, unless any such officer shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Warrant Agent shall have received written instructions in response to such application specifying the action to be taken or omitted.
(l) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights.
(m) In addition to the foregoing, the Warrant Agent shall be protected and shall incur no liability for, or in respect of, any action taken or omitted by it in connection with its administration of this Agreement if such acts or omissions are in reliance upon (i) the proper execution of the certification concerning beneficial ownership appended to the form of assignment and the form of the election attached hereto unless the Warrant Agent shall have actual knowledge that, as executed, such certification is untrue, or (ii) the non-execution of such certification including, without limitation, any refusal to honor any otherwise permissible assignment or election by reason of such non-execution.
Appears in 2 contracts
Sources: Warrant Agent Agreement (Ats Medical Inc), Securities Purchase Agreement (Rockford Corp)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as the agent of the Company, Company and the Warrant Agent hereby accepts such appointment, appointment upon the following terms and conditions by all of which the Company and every Warrant Holder, by acceptance of a Warranthis Warrant Certificates, shall be bound:
(a) Statements contained in this Agreement and in the Warrant Certificates Certificate shall be taken as statements of the Company. The Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which of the same except such as describes the Warrant Agent and/or or for action taken or to be taken by the Warrant Agent.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's ’s covenants contained in this Agreement or in the Warrant Certificates.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent in the execution of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or nature incurred by the Warrant Agent in the performance execution of this Agreement.
(f) The Company shall Agreement and to indemnify the Warrant Agent and hold save it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred in connection with its performance of for this Agreement, Agreement except as a result of the Warrant Agent's ’s gross negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental faith or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damagewillful misconduct.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Unit Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests interest may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Unit Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
Appears in 2 contracts
Sources: Warrant Agreement (Biocurex Inc), Warrant Agreement (Biocurex Inc)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, duties and the Warrant Agent hereby accepts such appointment, obligations imposed by this Agreement upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates Warrants shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the Warrant Agentdistribution of the Warrants except as herein otherwise provided.
(b) The Warrant Agent has no duty to determine when an adjustment under Article 6 should be made, how it should be made or what it should be. The Warrant Agent has no duty to determine whether any provisions of a supplemental Agreement under Section 6.01(k) hereof are correct. The Warrant Agent makes no representation as to the validity or value of any securities or assets issued upon exercise of Warrants.
(c) The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will, when issued, be validly issued and fully paid and nonassessable, and makes no representation with respect thereto.
(d) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesWarrants.
(ce) The In the absence of bad faith on its part, the Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company)rely, and the Warrant Agent shall incur no liability will be protected in acting or responsibility to the Company or to any Warrant Holder in respect of any action takenrefraining from acting, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, resolutionrequest, waiverdirection, consent, order, certificate bond, debenture, note, other evidence of indebtedness or other paper, paper or document or instrument believed by it to be genuine and to have been signed, sent signed or presented by the proper party Person. The Warrant Agent need not investigate any fact or parties.
(e) The Company agrees matter stated in the document, but, in the case of any document which is specifically required to pay be furnished to the Warrant Agent the amount(s) described in Schedule A pursuant to this Agreement for the services rendered by the Warrant Agent. The Company shall also reimburse any provision hereof, the Warrant Agent for all expensesshall examine the document to determine whether it conforms to the requirements of the Agreement (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein). The Warrant Agent, taxes and governmental charges and all other charges of any kind in its discretion, may make further inquiry or nature incurred by the Warrant Agent in the performance of this Agreementinvestigation into such facts or matters as it sees fit.
(f) The Company shall indemnify the Warrant Agent may act through its attorneys and hold it harmless against any agents and all liabilities, including judgments, costs and counsel fees, incurred in connection with its performance of this Agreement, except as a result of will not be responsible for the Warrant Agent's misconduct or negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damageagent appointed with due care.
(g) The Warrant Agent shall will be under no obligation to institute exercise any actionof the rights or powers vested in it by the Agreement at the request or direction of any of the Holders, suit or legal proceeding or unless such Holders have offered to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security or indemnity against the costs, expenses and indemnity for any costs and expenses which may liabilities that might be incurred by it in connection compliance with such action, suit request or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnitydirection. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates Warrants or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(h) The Warrant Agent may consult with counsel, and the written advice of such counsel or any shareholderOpinion of Counsel will be full and complete authorization and protection in respect of any action taken, director, officer suffered or employee omitted by it hereunder in good faith and in reliance thereon.
(i) No provision of the Agreement will require the Warrant Agent may buyto expend or risk its own funds or otherwise incur any financial liability in the performance of its duties hereunder, sell or deal in the exercise of its rights or powers, unless it receives indemnity satisfactory to it against any of the Warrants loss, liability or other securities of expense.
(j) The Warrant Agent shall act hereunder solely as agent for the Company, or become pecuniarily interested in any transaction in which and its duties shall be determined solely by the Company may provisions hereof. No provision of the Agreement shall be interested, or contract with or lend money construed to the Company, or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant Agent. Nothing herein shall preclude relieve the Warrant Agent from acting in any other capacity liability for the Company its own grossly negligent action, its own grossly negligent failure to act or for any other legal entityits own willful misconduct.
Appears in 2 contracts
Sources: Warrant Agreement (Goodrich Petroleum Corp), Warrant Agreement (Goodrich Petroleum Corp)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, duties and the Warrant Agent hereby accepts such appointment, obligations imposed by this Agreement upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements 16.1 The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by the Warrant Agentit.
(b) 16.2 The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) 16.3 The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) 16.4 The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) 16.5 The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent in the execution of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the performance execution of this Agreement.
(f) The Company shall Agreement and to indemnify the Warrant Agent and hold save it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred for anything done or omitted by the Warrant Agent in connection with its performance the execution of this Agreement, Agreement except as a result of the Warrant Agent's its negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(g) 16.6 The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered holders of Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(h) 16.7 The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent thereof, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
16.8 The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own negligence or bad faith.
16.9 The Warrant Agent shall account promptly to the Company with respect to Warrants exercised and concurrently pay to the Company all moneys received by the Warrant Agent on the purchase of Shares through the exercise of Warrants.
Appears in 2 contracts
Sources: Warrant Agreement (Forstmann Little & Co Sub Debt & Eq MGMT Buyout Par Vii Lp), Warrant Agreement (McLeodusa Inc)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as the agent of the Company, Company and the Warrant Agent hereby accepts such appointment, appointment upon the following terms and conditions by all of which the Company and every Warrant Holder, by acceptance of a Warranthis Warrant Certificates, shall be bound:
(a) Statements contained in this Agreement and in the Warrant Certificates Certificate shall be taken as statements of the Company. The Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which of the same except such as describes the Warrant Agent and/or or for action taken or to be taken by the Warrant Agent.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's ’s covenants contained in this Agreement or in the Warrant Certificates.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent in the execution of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or nature incurred by the Warrant Agent in the performance execution of this Agreement.
(f) The Company shall Agreement and to indemnify the Warrant Agent and hold save it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred in connection with its performance of for this Agreement, Agreement except as a result of the Warrant Agent's ’s gross negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental faith or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damagewillful misconduct.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which that may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Class A Warrants or Class B Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests interest may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent and any shareholderstockholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Class A Warrants, Class B Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
Appears in 2 contracts
Sources: Warrant Agreement (S&W Seed Co), Warrant Agreement (S&W Seed Co)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, express duties and the Warrant Agent hereby accepts such appointment, obligations imposed by this Agreement upon the following terms and conditions (and no duties or obligations shall be inferred), by all of which the Company and every Warrant Holderthe Holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements and recitals contained in this Agreement herein and in the Warrant Certificates Warrants shall be taken as statements of the CompanyCompany and the Warrant Agent assumes no responsibility and shall not be liable for the correctness of any of the same except such as describe the Warrant Agent. The Warrant Agent assumes no responsibility hereunder only for with respect to the correctness distribution of any statement which describes the Warrant Agent and/or for action taken or to be taken by the Warrant AgentWarrants except as herein otherwise expressly provided.
(b) The Warrant Agent has no duty to determine when an adjustment under Article 6 should be made, how it should be made or what it should be. Nor shall the Warrant Agent have any obligation hereunder to determine whether an adjustment event has occurred. The Warrant Agent makes no representation as to the validity or value of any securities or assets issued upon exercise of Warrants. The Warrant Agent shall have no obligation under this Agreement to calculate, confirm, investigate or verify the accuracy of the correctness of, the number of Warrant Shares issuable in connection with any exercise hereunder.
(c) The Warrant Agent shall not be accountable with respect to (i) the validity, value, kind or amount of any Warrant Shares, securities or property which may be issued or delivered at any time upon the exercise of any Warrant or (ii) whether any such Warrant Shares or other securities will, when issued, be validly issued, fully paid and nonassessable; and in each case, makes no representation with respect thereto.
(d) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesWarrants.
(ce) In the absence of willful misconduct or gross negligence on its part, the Warrant Agent may rely on, and will be held harmless and protected and shall incur no liability in acting or refraining from acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document from the Company with respect to any matter relating to its acting as Warrant Agent hereunder believed by it to be genuine and to have been signed or presented by the proper Person. The Warrant Agent need not investigate any fact or matter stated in the document. The Warrant Agent, in its discretion, may make further inquiry or investigation into such facts or matters as it sees fit.
(f) The Warrant Agent may consult at with legal counsel, and the advice of such counsel or any time with counsel satisfactory Opinion of Counsel will be full and complete authorization and protection to it (who may be counsel for the Company), Warrant Agent and the Warrant Agent shall will incur no liability for or responsibility to the Company or to any Warrant Holder in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion absence of willful misconduct or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken gross negligence in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement for the services rendered by the Warrant Agent. The Company shall also reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or nature incurred by the Warrant Agent in the performance of this Agreement.
(f) The Company shall indemnify the Warrant Agent and hold it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred in connection with its performance of this Agreement, except as a result of the Warrant Agent's negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damagethereon.
(g) The Warrant Agent shall may act through its attorneys and agents and will not be under no obligation to institute any action, suit responsible for the misconduct or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession negligence of any agent absent gross negligence or willful misconduct (each as determined by a final judgment of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery a court of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests may appear, subject to the terms set forth competent jurisdiction) in the Warrant Certificatesappointment of such agent.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the express provisions hereof. No provision of this Agreement shall be construed to relieve the Warrant Agent from liability for its own gross negligence or willful misconduct (each as determined by a final judgment of a court of competent jurisdiction).
(i) The Warrant Agent shall not have any shareholderduty or responsibility in the case of the receipt of any written demand from any Holder of Warrants with respect to any action or default by the Company, directorincluding, officer without limiting the generality of the foregoing, any duty or employee responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.
(j) The Warrant Agent shall not be obligated to expend or risk its own funds or to take any action that it reasonably believes would expose or subject it to expense or liability or to a risk of incurring expense or liability, unless it has been furnished with assurances of repayment or indemnity reasonably satisfactory to it; provided, further, that the Warrant Agent may buy, sell or deal in any event resign pursuant to Section 7.04(i) instead of taking any such action.
(k) The Warrant Agent shall not be liable or responsible for any failure of the Company to comply with any of its obligations relating to any registration statement filed with the Commission or this Agreement, including, without limitation, obligations under applicable regulation or law.
(l) The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any Warrants authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of the proceeds of the issue and sale, or exercise, of the Warrants.
(m) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the express provisions hereof (and no duties or obligations shall be inferred or implied).
(n) The Warrant Agent may rely on and be fully authorized and protected in acting or failing to act upon (i) any guaranty of signature by an “eligible guarantor institution” that is a member or participant in the Securities Transfer Agents Medallion Program or other comparable “signature guarantee program” or insurance program in addition to, or in substitution for, the foregoing; or (ii) any law, act, regulation or any interpretation of the same even though such law, act, or regulation may thereafter have been altered, changed, amended or repealed.
(o) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to Company, the holder of any Warrant or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the reasonable satisfaction of Warrant Agent.
(p) The provisions of this Section 7.01, Section 7.02 and Section 7.03 will survive the termination of this Agreement, the exercise or expiration of the Warrants and the resignation, replacement or other securities removal of the Company, or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant Agent. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
Appears in 2 contracts
Sources: Warrant Agreement (Callon Petroleum Co), Warrant Agreement (Callon Petroleum Co)
Warrant Agent. The Company hereby appoints Warrant Agent undertakes the duties and obligations imposed by this Agreement (and no implied duties or obligations shall be read into this Agreement against the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, Agent) upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it of its own selection (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument (whether in its original or facsimile form) believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement such compensation for the all services rendered by the Warrant Agent. The Agent in the administration and execution of this Agreement as the Company and the Warrant Agent shall also agree in writing, to reimburse the Warrant Agent for all reasonable expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the performance execution of this Agreement.
Agreement (fincluding reasonable fees and expenses of its counsel) The Company shall and to indemnify the Warrant Agent (and hold any predecessor Warrant Agent) and save it harmless against any and all claims (whether asserted by the Company, a holder or any other person), damages, losses, expenses (including taxes other than taxes based on the income of the Warrant Agent), liabilities, including judgments, costs and counsel feesfees and expenses, incurred for anything done or omitted by the Warrant Agent in connection with its performance the execution of this Agreement, Agreement except as a result of the Warrant Agent's its gross negligence or bad faithwillful misconduct. In no case The provisions of this Section 15(e) shall survive the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised expiration of the likelihood Warrants and the termination of such loss or damagethis Agreement.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered holders of Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity reasonably satisfactory to it for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own gross negligence or willful misconduct.
(i) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of any Warrant Certificate to make or cause to be made any adjustment of the Exercise Price or number of the Warrant Shares or other securities or property deliverable as provided in this Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto.
(j) Notwithstanding anything in this Agreement to the contrary, neither the Company nor the Warrant Agent shall have any liability to any holder of a Right or other Person as a result of its inability to perform any of its obligations under this Agreement by reason of any preliminary or permanent injunction or other order, decree or ruling issued by a court of competent jurisdiction or by a governmental, regulatory or administrative agency or commission, or any statute, rule, regulation or executive order promulgated or enacted by any governmental authority prohibiting or otherwise restraining performance of such obligation; provided that the Company must use its reasonable best efforts to have any such order, decree or ruling lifted or otherwise overturned as soon as possible.
(k) Any application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent under this Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Warrant Agent shall not be liable for any action taken by, or omission of, the Warrant Agent in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any officer of the Company actually receives such application, unless any such officer shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Warrant Agent shall have received written instructions in response to such application specifying the action to be taken or omitted.
(l) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured to it.
(m) In addition to the foregoing, the Warrant Agent shall be protected and shall incur no liability for, or in respect of, any action taken or omitted by it in connection with its administration of this Agreement if such acts or omissions are in reliance upon (i) the proper execution of the certification concerning beneficial ownership appended to the form of assignment and the form of the election attached hereto unless the Warrant Agent shall have actual knowledge that, as executed, such certification is untrue, or (ii) the non-execution of such certification including, without limitation, any refusal to honor any otherwise permissible assignment or election by reason of such non-execution.
Appears in 2 contracts
Sources: Warrant Agreement (Anc Rental Corp), Warrant Agreement (Anc Rental Corp)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes only the agent of the Company, duties and the obligations expressly imposed by this Warrant Agent hereby accepts such appointment, Agreement upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The Warrant Agent may rely conclusively and shall be protected in acting upon any order, judgment, instruction, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by or who may be an employee of the Warrant Agent or one of its affiliates), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability and of information therein contained) which is believed by the Warrant Agent, in good faith, to be genuine and to be signed or presented by the proper person or persons as set forth in Section 19(d).
(b) The Warrant Agent shall have no duties, responsibilities or obligations as the Warrant Agent except those which are expressly set forth herein, and in any modification or amendment hereof to which the Warrant Agent has consented in writing, and no duties, responsibilities or obligations shall be implied or inferred.
(c) The statements contained in this Agreement herein and in the Global Warrant Certificates shall be taken as deemed to be statements of the CompanyCompany only. The Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same and shall not be required to verify the same.
(d) Whenever in the performance of its duties under this Warrant Agreement the Warrant Agent and/or for deems it necessary or desirable that any fact or matter be proved or established by the Company prior to taking, suffering or omitting to take any action taken hereunder, such fact or matter may be deemed to be taken conclusively proved and established by a certificate signed by the Company’s Chairman of the Board, Chief Executive Officer, President or any Vice President and delivered to the Warrant Agent; and in reliance upon such certificate, the Warrant Agent shall take any action or omit to take any action authorized under the provisions of this Warrant Agreement. In the event the Warrant Agent reasonably believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, or is uncertain of any action to take hereunder, the Warrant Agent, may, following prior written notice to the Company, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the reasonable satisfaction of the Warrant Agent.
(be) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Warrant Agreement (including, without limitation, any adjustment of the Exercise Price pursuant to Section 13 hereof, the authorization or reservation of shares of Common Stock pursuant to Section 12 hereof, and the due execution and delivery by the Company of this Warrant Agreement or any Global Warrant Certificate) or in the Global Warrant CertificatesCertificates to be complied with by the Company.
(cf) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), Company or an employee of the Warrant Agent) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(dg) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon on any Global Warrant Certificate, Warrant Statement, certificate representing shares of Common Stock, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties. The Warrant Agent shall not be bound by any notice or demand, or any waiver, modification, termination or revision of this Warrant Agreement or any of the terms hereof, unless evidenced by a writing between and signed by, the Company and the Warrant Agent. The Warrant Agent shall not be required to take instructions or directions except those given in accordance with this Warrant Agreement.
(eh) The Warrant Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys, accountants, agents or other experts, and the Warrant Agent will not be answerable or accountable for any act, default, neglect or unintentional misconduct of any such attorneys or agents or for any loss to the Company or the holders of the Warrants resulting from any such act, default, neglect or unintentional misconduct, absent gross negligence, willful misconduct or bad faith (as each is determined by a final non-appealable order of a court of competent jurisdiction) in the selection and continued employment or engagement thereof.
(i) The Warrant Agent will not be under any duty or responsibility to insure compliance with any applicable federal or state securities laws in connection with the issuance, transfer or exchange of Global Warrant Certificates.
(j) The Warrant Agent shall not incur any liability for not performing any act, duty, obligation or responsibility by reason of any occurrence beyond the control of the Warrant Agent (including, without limitation, any act or provision of any present or future law or regulation or governmental authority, any act of God, war, civil disorder or failure of any means of communication).
(k) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent in the preparation, delivery, administration and execution of this Warrant Agreement and the exercise and performance of its duties hereunder, to reimburse the Warrant Agent for all expensesreasonable expenses (including reasonable counsel fees), taxes (including withholding taxes) and governmental charges and all other charges of any kind or and nature actually incurred by the Warrant Agent in the execution, delivery and performance of its responsibilities under this Agreement.
(f) The Company shall Warrant Agreement and to indemnify the Warrant Agent and hold save it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred for anything done or omitted by the Warrant Agent, or any person acting on behalf of the Warrant Agent, in connection with its the execution, delivery and performance of its responsibilities under this Agreement, Warrant Agreement except as a result of the Warrant Agent's negligence its gross negligence, bad faith or bad faith. In no case shall the Warrant Agent be liable for specialwillful misconduct (each as determined by a final, indirect, incidental or consequential loss or damage non-appealable order of any kind whatsoever, even if the Warrant Agent has been advised a court of the likelihood of such loss or damagecompetent jurisdiction).
(gl) The Warrant Agent Agent, shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more holders of Global Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Warrant Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates Warrants or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hm) The Except as otherwise prohibited by applicable law, the Warrant Agent Agent, and any shareholdermember, stockholder, director, officer or employee of the Warrant Agent Agent, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(n) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the express provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Warrant Agreement, except for its own gross negligence, bad faith or willful misconduct (each as determined by a final, non-appealable order of a court of competent jurisdiction); provided that in no event shall the Warrant Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including, without limitation, lost profits). Any liability of the Warrant Agent under this Agreement, except for liability arising out of, or in connection with, the gross negligence, bad faith or willful misconduct (each as determined by a final, non-appealable order of a court of competent jurisdiction) of the Warrant Agent, will be limited to the amount of aggregate fees paid by the Company to the Warrant Agent.
(o) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of any Warrant to make or cause to be made any adjustment of the Exercise Price or number of the shares of Common Stock or other securities or property deliverable as provided in this Warrant Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any shares of Common Stock or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such shares of Common Stock or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto. The Warrant Agent shall not be accountable to confirm or verify the accuracy or necessity of any calculation.
(p) The Company agrees to perform, execute and acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments, and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement.
(q) The Warrant Agent shall have no responsibility or liability with respect to the validity of this Agreement or with respect to the validity or execution of any Warrant (except its countersignature thereof); nor shall it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Warrant; nor shall it be responsible to make or be liable for any adjustments required under any provision hereof, including but not limited to Section 12 hereof, or responsible for the manner, method or amount of any such adjustment or the ascertaining of the existence of facts that would require any such adjustment; nor shall it by act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any shares of Common Stock to be issued pursuant to this Agreement or any Warrant or as to whether any shares of Common Stock will, when issued, be valid and fully paid and nonassessable.
(r) Notwithstanding anything to the contrary contained herein, the Warrant Agent shall also have no duty or obligation to investigate or confirm whether any determination of the Exercise Amount under Section 9 is correct or accurate.
(s) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights, except to the extent otherwise expressly set forth herein.
(t) Notwithstanding the foregoing, nothing in this Section 19 shall relieve the Warrant Agent from any liability arising from the Warrant Agent’s transfer of any Warrant without obtaining confirmation from the Company as described in Section 7 hereof.
(u) All rights and obligations contained in this Section 19 and Section 20 hereof shall survive the termination of this Warrant Agreement and the resignation, replacement or removal of the Warrant Agent.
Appears in 2 contracts
Sources: Warrant Agreement (New Media Investment Group Inc.), Warrant Agreement (New Media Investment Group Inc.)
Warrant Agent. (a) The Company hereby appoints the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, upon the following terms and conditions by all of which the Company and every Warrant Holder, by acceptance of a Warrant, shall be bound:
(a) Statements contained in this Agreement and in the Warrant Certificates shall be taken as statements of the Company. The Warrant Agent assumes responsibility hereunder only for the correctness of any statement which describes agree that the Warrant Agent and/or for action taken or to be taken by will serve as an agent of the Warrant AgentCompany as set forth in this Agreement.
(b) The Warrant Agent shall not by any act hereunder be deemed to make any representation as to validity or authorization of the Warrants or the Warrant Certificates (except as to its countersignature thereon) or of any securities or other property delivered upon exercise of any Warrant, or as to the number or kind or amount of securities or other property deliverable upon exercise of any Warrant or the correctness of the representations of the Company made in such certificates that the Warrant Agent receives.
(c) The Warrant Agent shall not have any duty to calculate or determine any required adjustments with respect to the Exercise Price or the kind and amount of securities or other property receivable by Holders upon the exercise of Warrants, nor to determine the accuracy or correctness of any such calculation.
(d) The Warrant Agent shall not (i) be liable for any recital or statement of fact contained herein or in the Warrant Certificates or for any action taken, suffered or omitted by it in good faith in the belief that any Warrant Certificate or any other document or any signature is genuine or properly authorized, (ii) be responsible for any failure of by the Company to comply with any of the Company's covenants its obligations contained in this Agreement or in the Warrant Certificates.
, (ciii) The Warrant Agent may consult at be liable for any time act or omission in connection with counsel satisfactory to it this Agreement except for its own gross negligence or willful misconduct or (who may be counsel for the Company), and the Warrant Agent shall incur no liability or iv) have any responsibility to the Company or to any determine whether a transfer of a Warrant Holder in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance complies with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or partiesapplicable securities laws.
(e) The Warrant Agent is hereby authorized to accept instructions with respect to the performance of its duties hereunder from the Chief Executive Officer, the President, any Vice President, the Treasurer, or the Secretary or any Assistant Secretary of the Company agrees and to pay apply to any such officer for written instructions (which will then be promptly given) and the Warrant Agent shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with the amount(s) described instructions of any such officer, except for its own gross negligence or willful misconduct, but in Schedule A to this Agreement for the services rendered by the Warrant Agent. The Company shall also reimburse its discretion the Warrant Agent for all expenses, taxes and governmental charges and all may in lieu thereof accept other charges evidence of any kind such or nature incurred by the Warrant Agent in the performance of this Agreementmay require such further or additional evidence as it may deem reasonable.
(f) The Company shall indemnify the Warrant Agent and hold it harmless against may exercise any and all liabilities, including judgments, costs and counsel fees, incurred in connection with its performance of this Agreement, except as a result of the Warrant Agent's negligence rights and powers hereby vested in it or bad faith. In no case shall perform any duty hereunder either itself or by or through its attorneys, agents or employees, provided reasonable care has been exercised in the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage selection and in the continued employment of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(g) persons. The Warrant Agent shall not be under no any obligation or duty to institute institute, appear in or defend any action, suit or legal proceeding or in respect hereof, unless first indemnified to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(h) The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Warrants or other securities of the Company, or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant Agent. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.its
Appears in 2 contracts
Sources: Warrant Agreement (Microvision Inc), Warrant Agreement (Microvision Inc)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, upon the following terms and conditions by all of which the Company and every Warrant Holder, by acceptance of a Warrant, shall be bound:
(a) Statements contained The Warrant Agent shall have the powers and authority granted to and conferred upon it in this Agreement and such further powers and authority to act on behalf of the Company as the Company may hereafter grant to or confer upon it. All of the terms and provisions with respect to such powers and authority contained in the Warrant Certificates shall be taken as statements of the Company. The Warrant Agent assumes responsibility hereunder only for the correctness Global Warrants of any statement which describes the Warrant Agent and/or for action taken series or definitive certificated Warrants relating to be taken such Warrants, if any, are subject to and governed by the Warrant Agentterms and provisions hereof.
(b) The Company hereby appoints [ ] (“[ ]”) as initial Warrant Agent shall not be responsible for any failure of the Company in respect of series of Warrants to comply be issued upon the terms and subject to the conditions set forth herein; and [ ] hereby accepts such appointment. The Warrant Agent covenants and agrees to maintain an office, staffed by qualified personnel, with adequate facilities for the discharge of its responsibilities under this Agreement, including, without limitation, the payment of any amounts due under the Warrants of any series, as calculated by the Calculation Agent for that series, and the timely settlement of the Company's covenants contained in this Agreement or in the Warrant CertificatesWarrants upon exercise thereof.
(c) The Company may from time to time, in connection with the issuance of one or more series of Warrants, appoint one or more additional agents under this Agreement to act as Warrant Agent may consult at with respect to such series of Warrants. The Company shall enter into a supplemental Warrant Agreement with any time with counsel satisfactory to it (who may be counsel for the Company), and the Warrant Agent shall incur no liability or responsibility not a party to the Company or this Agreement, pursuant to any Warrant Holder in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of which such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment will become a party to this Agreement with respect to such series of such counselWarrants.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine covenants and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement maintain offices, staffed by qualified personnel, with adequate facilities for the services rendered by discharge of its responsibilities hereunder, including, without limitation, the Warrant Agent. The Company shall also reimburse timely settlement of Warrants upon the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or nature incurred by the Warrant Agent in the performance of this Agreementexercise thereof.
(f) The Company shall indemnify the Warrant Agent and hold it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred in connection with its performance of this Agreement, except as a result of the Warrant Agent's negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(g) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(h) The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Warrants or other securities of the Company, or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant Agent. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
Appears in 2 contracts
Sources: Warrant Agreement (Swedish Export Credit Corp /Swed/), Warrant Agreement (Swedish Export Credit Corp /Swed/)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, duties and the Warrant Agent hereby accepts such appointment, ------------- obligations expressly imposed by this Agreement upon the following terms and conditions conditions, and no implied duties or obligations shall be read into this Agreement against the Warrant Agent, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The , and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it of its own selection (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent may conclusively rely upon and shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument (whether in its original or facsimile form) believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent such compensation as shall be agreed between the amount(s) described in Schedule A to this Agreement Company and the Warrant Agent for the all services rendered by the Warrant Agent. The Company shall also Agent in the execution of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in connection with the performance execution and administration of its duties under this Agreement.
(f) The Company shall Agreement and to fully indemnify the Warrant Agent and hold save it harmless against any and all liabilities, claims, damages, losses and expenses including judgments, costs and reasonable counsel feesfees and expenses, incurred for anything done or omitted by the Warrant Agent in connection with the execution and administration of its performance duties under this Agreement except as determined by a court of competent jurisdiction to have been caused by its gross negligence or willful misconduct. The provisions of this Section 19(e) shall survive the termination of this Agreement, except as a result of the Warrant Agent's negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered holders of Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity satisfactory to it for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnityincurred. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent thereof, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof and no duties shall be inferred or implied against the Warrant Agent. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own gross negligence or willful misconduct.
(i) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of is rights if there shall be reasonable grounds for believing repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured to it.
Appears in 2 contracts
Sources: Warrant Agreement (Tivo Inc), Warrant Agreement (Tivo Inc)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, express duties and the Warrant Agent hereby accepts such appointment, obligations imposed by this Agreement upon the following terms and conditions (and no duties or obligations shall be inferred), by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements and recitals contained in this Agreement herein and in the Warrant Certificates Warrants shall be taken as statements of the CompanyCompany and the Warrant Agent assumes no responsibility and shall not be liable for the correctness of any of the same except such as describe the Warrant Agent. The Warrant Agent assumes no responsibility hereunder only for with respect to the correctness distribution of any statement which describes the Warrant Agent and/or for action taken or to be taken by the Warrant AgentWarrants except as herein otherwise expressly provided.
(b) The Warrant Agent has no duty to determine when an adjustment under Article 6 should be made, how it should be made or what it should be. Nor shall the Warrant Agent have any obligation hereunder to determine whether an adjustment event has occurred. The Warrant Agent makes no representation as to the validity or value of any securities or assets issued upon exercise of Warrants. The Warrant Agent shall have no obligation under this Agreement to calculate, confirm, investigate or verify the accuracy of the correctness of, the number of Warrant Shares issuable in connection with any exercise hereunder.
(c) The Warrant Agent shall not be accountable with respect to (i) the validity, value, kind or amount of any Warrant Shares, securities or property which may be issued or delivered at any time upon the exercise of any Warrant or (ii) whether any such Warrant Shares or other securities will, when issued, be validly issued, fully paid and nonassessable; and in each case, makes no representation with respect thereto.
(d) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesWarrants.
(ce) In the absence of bad faith on its part, the Warrant Agent may rely on, and will be held harmless and protected and shall incur no liability in acting or refraining from acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document from the Company with respect to any matter relating to its acting as Warrant Agent hereunder believed by it to be genuine and to have been signed or presented by the proper Person. The Warrant Agent need not investigate any fact or matter stated in the document. The Warrant Agent, in its discretion, may make further inquiry or investigation into such facts or matters as it sees fit.
(f) The Warrant Agent may consult at with legal counsel, and the advice of such counsel or any time with counsel satisfactory Opinion of Counsel will be full and complete authorization and protection to it (who may be counsel for the Company), Warrant Agent and the Warrant Agent shall will incur no liability for or responsibility to the Company or to any Warrant Holder in respect of any action taken, suffered or omitted by it hereunder in good the absence of bad faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement for the services rendered by the Warrant Agent. The Company shall also reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or nature incurred by the Warrant Agent in the performance of this Agreement.
(f) The Company shall indemnify the Warrant Agent and hold it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred in connection with its performance of this Agreement, except as a result of the Warrant Agent's negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damagethereon.
(g) The Warrant Agent may act through its attorneys and agents and will not be responsible for the misconduct or negligence of any agent absent gross negligence or willful misconduct (each as determined by a final judgment of a court of competent jurisdiction) in the appointment of such agent.
(h) No provision of this Agreement will require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties hereunder, or in the exercise of its rights or powers, unless it receives indemnity satisfactory to it against any loss, liability or expense.
(i) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be under no obligation determined solely by the express provisions hereof. No provision of this Agreement shall be construed to institute relieve the Warrant Agent from liability for its own gross negligence or willful misconduct (each as determined by a final judgment of a court of competent jurisdiction).
(j) The Warrant Agent shall not have any actionduty or responsibility in the case of the receipt of any written demand from any Holder of Warrants with respect to any action or default by the Company, suit including, without limiting the generality of the foregoing, any duty or legal proceeding responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.
(k) The Warrant Agent shall not be obligated to expend or risk its own funds or to take any other action likely that it believes would expose or subject it to involve expense or liability or to a risk of incurring expense or liability, unless it has been furnished with assurances of repayment or indemnity satisfactory to it.
(l) The Warrant Agent shall not be liable or responsible for any failure of the Company to comply with any of its obligations relating to any registration statement filed with the Securities and Exchange Commission or one this Agreement, including without limitation obligations under applicable regulation or more law.
(m) The Warrant Holders Agent shall furnish not be accountable or under any duty or responsibility for the use by the Company of any Warrants authenticated by the Warrant Agent with reasonable security and indemnity delivered by it to the Company pursuant to this Agreement or for any costs the application by the Company of the proceeds of the issue and expenses which may sale, or exercise, of the Warrants.
(n) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be incurred in connection with such action, suit determined solely by the express provisions hereof (and no duties or legal proceeding, but this provision obligations shall be inferred or implied). The Warrant Agent shall not affect assume any obligations or relationship of agency or trust with any of the power owners or holders of the Warrants.
(o) The Warrant Agent may rely on and be fully authorized and protected in acting or failing to act upon (i) any guaranty of signature by an “eligible guarantor institution” that is a member or participant in the Securities Transfer Agents Medallion Program or other comparable “signature guarantee program” or insurance program in addition to, or in substitution for, the foregoing; or (ii) any law, act, regulation or any interpretation of the same even though such law, act, or regulation may thereafter have been altered, changed, amended or repealed.
(p) In the event the Warrant Agent to take such action as believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole and absolute discretion, consider properrefrain from taking any action, whether with and shall be fully protected and shall not be liable in any way to Company, the holder of any Warrant certificate or without any other person or entity for refraining from taking such security action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or indemnity. All rights uncertainty to the reasonable satisfaction of action under Warrant Agent.
(q) The provisions of this Agreement Section 7.01, Section 7.02 and Section 7.03 will survive the termination of this Agreement, the exercise or under any expiration of the Warrants may be enforced by and the Warrant Agent without the possession of any resignation, replacement or removal of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(h) The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Warrants or other securities of the Company, or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant Agent. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
Appears in 2 contracts
Sources: Series a Preferred Stock Purchase Agreement (Targa Resources Corp.), Warrant Agreement (Targa Resources Corp.)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as the agent of the Company, Company and the Warrant Agent hereby accepts such appointment, appointment upon the following terms and conditions by all of which the Company and every Warrant Holder, by acceptance of a Warranthis Warrants, shall be bound:
(a) a. Statements contained in this Agreement and in the Warrant Certificates shall be taken as statements of the Company. The Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which of the same except such as describes the Warrant Agent and/or or for action taken or to be taken by the Warrant Agent.
(b) b. The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant Certificates.
(c) c. The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) d. The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) e. The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent in the execution of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or nature incurred by the Warrant Agent in the performance execution of this Agreement.
(f) The Company shall Agreement and to indemnify the Warrant Agent and hold save it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred in connection with its performance of for this Agreement, Agreement except as a result of the Warrant Agent's negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(g) f. The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment judgement shall be for the ratable benefit of the Warrant Holders as their respective rights or interests interest may appear, subject to the terms set forth in the Warrant Certificates.
(h) g. The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
Appears in 2 contracts
Sources: Warrant Agreement (Streamedia Communications Inc), Warrant Agreement (Summa Metals Corp /Nv/)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes only the agent of the Company, duties and obligations expressly imposed by this Agreement and the Global Warrant Agent hereby accepts such appointmentCertificates, in each case upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe Holders, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements : The statements contained in this Agreement herein and in the Global Warrant Certificates shall be taken as statements of the Company. The , and the Warrant Agent assumes no responsibility hereunder only for the correctness accuracy of any statement which describes of the same except to the extent that such statements describe the Warrant Agent and/or for or action taken or to be taken by the Warrant Agent.
(b) . Except as expressly provided herein, the Warrant Agent assumes no responsibility with respect to the execution, delivery or distribution of the Global Warrant Certificates. The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Global Warrant Certificates.
Certificates to be complied with by the Company, nor shall it at any time be under any duty or responsibility to any Holder to make or cause to be made any adjustment in the Exercise Price or in the Warrant Number (c) except as instructed in writing by the Company), or to determine whether any facts exist that may require any such adjustments, or with respect to the nature or extent of or method employed in making any such adjustments when made. The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the CompanyCompany or an employee of the Warrant Agent), and the advice or opinion of such counsel will be full and complete authorization and protection to the Warrant Agent shall incur no liability or responsibility as to the Company or to any Warrant Holder in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion such advice or the advice of such counselopinion, provided the Warrant Agent shall have exercised reasonable care absent fraud, recklessness, bad faith or willful misconduct in the selection and continued employment retention of such counsel and the reliance on such counsel.
(d) ’s advice or opinion. The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon on any written notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) . The Warrant Agent shall not take any instructions or directions except those given in accordance with this Agreement, and the Warrant Agent shall be indemnified and held harmless for acting on any such instructions, including, without limitation, instructions given pursuant to the terms of this Agreement by persons other than the Company. The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent under this Agreement as set forth in Exhibit D, to reimburse the Warrant Agent upon demand for all reasonable out-of-pocket expenses, taxes including counsel fees and governmental charges and all other charges of any kind or nature disbursements, incurred by the Warrant Agent in the preparation, administration, delivery, execution and amendment of this Agreement and the performance of its duties under this Agreement.
(f) The Company shall Agreement and to indemnify the Warrant Agent and hold save it harmless against any and all liabilitieslosses, liabilities and expenses, including judgments, damages, fines, penalties, claims, demands and costs (including reasonable out-of-pocket counsel fees and counsel feesexpenses), incurred for anything done or omitted by the Warrant Agent arising out of or in connection with its performance of this Agreement, Agreement except as a result of its fraud, recklessness, bad faith or willful misconduct. The costs and expenses incurred by the Warrant Agent in enforcing the right to indemnification shall be paid by the Company except to the extent that the Warrant Agent is not entitled to indemnification due to its fraud, recklessness, bad faith or willful misconduct. Notwithstanding the foregoing, the Company shall not be responsible for any settlement made without its written consent; provided, that nothing in this sentence shall limit the Company’s obligations contained in this paragraph other than pursuant to such a settlement. Notwithstanding anything contained herein to the contrary, except to the extent arising from fraud, recklessness, bad faith or willful misconduct of the Warrant Agent's negligence , the Warrant Agent’s aggregate liability to the Company during any term of this Agreement with respect to, arising from, or bad faith. In no case in connection with this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, in tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Company to the Warrant Agent be liable for specialas fees and charges, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(g) but not including reimbursable expenses. The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense or liability unless the Company (if it is the party seeking such action) or one or more Warrant Holders shall furnish (if they are the parties seeking such action) furnishes the Warrant Agent with reasonable security and indemnity satisfactory to the Warrant Agent for any costs and or expenses which that may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnityincurred. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates Warrants or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of or judgment shall be for the ratable benefit of the Warrant Holders Holders, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(h) . The Warrant Agent Agent, and any shareholdermember, stockholder, affiliate, director, officer or employee of the Warrant Agent thereof, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be is interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were was not the Warrant Agent under this Agreement Agreement, or a shareholdermember, stockholder director, officer or employee of such the Warrant Agent, as the case may be. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity. The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything that it may do or refrain from doing in connection with this Agreement except in connection with its own fraud, recklessness, bad faith or willful misconduct. Notwithstanding anything in this Agreement to the contrary, in no event will the Warrant Agent be liable for special, indirect, incidental, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if the Warrant Agent has been advised of the possibility of such loss or damage. The Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement. The Warrant Agent shall not be under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except the due and validly authorized execution hereof by the Warrant Agent) or in respect of the validity or execution of any Global Warrant Certificate (except its due and validly authorized countersignature thereof), nor shall the Warrant Agent by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of the Warrant Shares to be issued pursuant to this Agreement or any Warrant or as to whether the Warrant Shares will when issued be validly issued, fully paid and nonassessable or as to the Exercise Price or the Warrant Number. Whenever in the performance of its duties under this Agreement the Warrant Agent deems it necessary or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action hereunder, the Warrant Agent is hereby authorized and directed that it may accept instructions with respect to the performance of its duties hereunder from an Appropriate Officer of the Company and to apply to such Appropriate Officer for advice or instructions in connection with its duties, and such instructions shall be full authorization and protection to the Warrant Agent and, absent fraud, recklessness, bad faith or willful misconduct, the Warrant Agent shall not be liable for any action taken, suffered to be taken, or omitted to be taken by it in accordance with instructions of any such Appropriate Officer or in reliance upon any statement signed by any one of such Appropriate Officers of the Company with respect to any fact or matter (unless other evidence in respect thereof is herein specifically prescribed) which may be deemed to be conclusively proved and established by such signed statement. No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights if it believes that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured to it. If the Warrant Agent shall receive any notice or demand (other than notice of or demand for exercise of Warrants) addressed to the Company by any Holder pursuant to the provisions of the Warrants, the Warrant Agent shall promptly forward such notice or demand to the Company. The Warrant Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys, accountants, agents or other experts, and the Warrant Agent will not be answerable or accountable for any act, default, neglect or misconduct of any such attorneys or agents or for any loss to the Company or the Holders resulting from any such act, default, neglect or misconduct, absent fraud, recklessness, bad faith or willful misconduct in the selection and continued employment thereof. The Warrant Agent will not be under any duty or responsibility to ensure compliance with any applicable federal or state securities laws in connection with the issuance, transfer or exchange of the Warrants. The Warrant Agent shall have no duties, responsibilities or obligations as the Warrant Agent except those which are expressly set forth herein, and in any modification or amendment hereof to which the Warrant Agent has consented in writing, and no duties, responsibilities or obligations shall be implied or inferred. Without limiting the foregoing, unless otherwise expressly provided in this Agreement, the Warrant Agent shall not be subject to, nor be required to comply with, or determine if any Person has complied with, the Warrants, the Plan or any other agreement between or among the parties hereto, even though reference thereto may be made in this Agreement, or to comply with any notice, instruction, direction, request or other communication, paper or document other than as expressly set forth in this Agreement. The Warrant Agent shall not incur any liability for not performing any act, duty, obligation or responsibility by reason of any occurrence beyond the control of the Warrant Agent (including without limitation any act or provision of any present or future law or regulation or governmental authority, any act of God, war, civil disorder or failure of any means of communication). In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, or is for any reason unsure as to what action to take hereunder, the Warrant Agent shall notify the Company in writing as soon as practicable, and upon delivery of such notice may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company or any Holder or other Person for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of Warrant Agent. The provisions of this Section 17 shall survive the termination of this Agreement, the exercise or expiration of the Warrants and the resignation or removal of the Warrant Agent. No provision of this Agreement shall be construed to relieve the Warrant Agent from liability for its own fraud, recklessness, bad faith or its willful misconduct.
Appears in 2 contracts
Sources: Warrant Agreement (Dynegy Inc.), Warrant Agreement (Dynegy Inc.)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes only the agent of the Company, duties and the obligations expressly imposed by this Warrant Agent hereby accepts such appointment, Agreement upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements contained The Warrant Agent may rely conclusively and shall be protected in acting upon any order, judgment, instruction, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by or who may be an employee of the Warrant Agent or one of its affiliates), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability and of information therein contained) which is believed by the Warrant Agent, in the absence of bad faith, to be genuine and to be signed or presented by the proper person or persons as set forth in Section 18(d).
(b) The Warrant Agent shall have no duties, responsibilities or obligations as the Warrant Agent except those which are expressly set forth herein, and in any modification or amendment hereof to which the Warrant Agent has consented in writing, and no duties, responsibilities or obligations shall be implied or inferred. Without limiting the foregoing, unless otherwise expressly provided in this Agreement Warrant Agreement, the Warrant Agent shall not be subject to, nor be required to comply with, or determine if any Person has complied with, the Warrants or any other agreement between or among the parties hereto, even though reference thereto may be made in this Warrant Agreement, or to comply with any notice, instruction, direction, request or other communication, paper or document other than as expressly set forth in this Warrant Agreement.
(c) The statements contained herein and in the Global Warrant Certificates shall be taken as deemed to be statements of the CompanyCompany only. The Warrant Agent assumes no responsibility hereunder only for the accuracy or correctness of any statement which describes of the same and shall not be required to verify the same.
(d) Whenever in the performance of its duties under this Warrant Agreement the Warrant Agent and/or deems it necessary or desirable that any fact or matter be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, the Warrant Agent is hereby authorized and directed to accept written instructions with respect to the performance of its duties hereunder from an Appropriate Officer and to apply to the Appropriate Officers for advice or instructions in connection with its duties, and such instructions shall be full authorization to the Warrant Agent and, absent gross negligence, bad faith or willful misconduct (each as determined by a final, non-appealable judgment of a court of competent jurisdiction), the Warrant Agent shall not be liable for any action taken taken, suffered, or omitted to be taken by it in accordance with the instructions of any such Appropriate Officer or in reliance upon any statement signed by any one of such Appropriate Officers with respect to any fact or matter which may be deemed to be conclusively proved and established by such signed statement. In the event the Warrant Agent reasonably believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, or is uncertain of any action to take hereunder, the Warrant Agent, may, following prior written notice to the Company, in its discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the reasonable satisfaction of the Warrant Agent.
(be) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Warrant Agreement (including, without limitation, any adjustment of the Exercise Price pursuant to Section 12 hereof, the authorization or reservation of shares of Common Stock pursuant to Section 11 hereof, and the due execution and delivery by the Company of this Warrant Agreement or any Global Warrant Certificate) or in the Global Warrant CertificatesCertificates to be complied with by the Company.
(cf) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the CompanyCompany or an employee of the Warrant Agent), and the advice and opinion of such counsel will be, when relied upon without bad faith by the Warrant Agent, full and complete authorization to the Warrant Agent as to, and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder in respect of of, any action taken, suffered or omitted by it hereunder in good faith and in accordance with the such opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care counsel and in the selection and continued employment absence of such counselbad faith.
(dg) The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder or to any other person for any action taken in reliance upon on any Global Warrant Certificate, Warrant Statement, certificate representing shares of Common Stock, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties. The Warrant Agent shall not be bound by any notice or demand, or any waiver, modification, termination or revision of this Warrant Agreement or any of the terms hereof, unless evidenced by a writing between and signed by, the Company and the Warrant Agent. The Warrant Agent shall not be required to take instructions or directions except those given in accordance with this Warrant Agreement.
(eh) The Warrant Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys, accountants, agents or other experts, and the Warrant Agent will not be answerable or accountable for any act, default, neglect or unintentional misconduct of any such attorneys or agents or for any loss to the Company or the holders of the Warrants resulting from any such act, default, neglect or unintentional misconduct, absent gross negligence, willful misconduct or bad faith (as each is determined by a final non-appealable order of a court of competent jurisdiction) in the selection and continued employment or engagement thereof.
(i) The Warrant Agent will not be under any duty or responsibility to insure compliance with any applicable federal or state securities laws in connection with the issuance, transfer or exchange of Global Warrant Certificates.
(j) Notwithstanding anything to the contrary contained herein, the Warrant Agent shall not incur any liability for not performing, or a delay in the performance of, any act, duty, obligation or responsibility by reason of any occurrence beyond the control of the Warrant Agent (including, without limitation, any act or provision of any present or future law or regulation or governmental authority, any act of God, war, civil or military disobedience or disorder, riot, rebellion, terrorism, insurrection, fire, earthquake, storm, flood, strike, work stoppage, labor dispute or failure of any utilities or means of communication or computer (software or hardware) services).
(k) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent in the negotiation, preparation, delivery, administration, amendment and execution of this Warrant Agreement and the exercise and performance of its duties hereunder, to reimburse the Warrant Agent for all expensesreasonable expenses (including reasonable counsel fees and disbursements), taxes (including withholding taxes) and governmental charges and all other charges of any kind or and nature actually incurred by the Warrant Agent in the negotiation, preparation, administration, amendment, execution, delivery and performance of its duties and responsibilities under this Warrant Agreement.
(f) The Company shall , in each case in accordance with and subject to that certain schedule of fees, dated August 30, 2010, delivered by the Warrant Agent to the Company, and to indemnify the Warrant Agent and hold save it harmless against any and all liabilitieslosses, liabilities and expenses, including judgments, damages, fines, penalties, claims, demands, costs and counsel feesfees and expenses, incurred for any action taken or omitted to be taken by the Warrant Agent, or any person acting on behalf of the Warrant Agent, arising out of or in connection with its performance of this Agreement, Warrant Agreement except as a result of the Warrant Agent's negligence its gross negligence, bad faith or bad faithwillful misconduct (each as determined by a final, non-appealable order of a court of competent jurisdiction). In no case shall The costs and expenses incurred by the Warrant Agent in successfully enforcing this right to indemnification shall be liable for specialpaid by the Company except to the extent that it is determined by a final, indirect, incidental or consequential loss or damage non-appealable order of any kind whatsoever, even if a court of competent jurisdiction that the Warrant Agent has been advised of the likelihood of such loss or damageis not entitled to indemnification hereunder.
(gl) The Warrant Agent Agent, shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense or liability unless the Company or one or more holders of Global Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Warrant Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates Warrants or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hm) The Except as otherwise prohibited by applicable law, the Warrant Agent Agent, and any shareholdermember, stockholder, affiliate, director, officer or employee of the Warrant Agent Agent, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement Warrant Agreement, or a shareholdermember, stockholder, affiliate, director, officer or employee of such the Warrant Agent, as the case may be. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(n) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the express provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Warrant Agreement, except for its own gross negligence, bad faith or willful misconduct (each as determined by a final, non-appealable order of a court of competent jurisdiction); provided that notwithstanding anything in this Warrant Agreement to the contrary, in no event shall the Warrant Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including, without limitation, lost profits). Notwithstanding anything contained herein to the contrary, the Warrant Agent’s aggregate liability during any term of this Warrant Agreement with respect to, arising from, or arising in connection with this Warrant Agreement, or from all services provided or omitted to be provided under this Warrant Agreement, whether in contract, or in tort, or otherwise (in each case, other than any liability arising from or arising in connection with willful misconduct (as determined by a final, non appealable order of a court of competent jurisdiction) on the part of the Warrant Agent), is limited to, and shall not exceed, an amount equal to 3x the amounts paid hereunder by the Company to the Warrant Agent as fees and charges, but not including reimbursable expenses.
(o) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of any Warrant to make or cause to be made any adjustment of the Exercise Price or number of the shares of Common Stock or other securities or property deliverable as provided in this Warrant Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any shares of Common Stock or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such shares of Common Stock or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto. The Warrant Agent shall not be accountable to confirm or verify the accuracy or necessity of any calculation.
(p) The Company agrees to perform, execute and acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments, and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Warrant Agreement.
(q) The Warrant Agent shall have no responsibility or liability with respect to the validity of this Warrant Agreement or the execution and delivery hereof (except its countersignature hereof) or with respect to the validity or execution of any Warrant (except its countersignature thereof); nor shall it be responsible for any breach by the Company of any covenant or condition contained in this Warrant Agreement or in any Warrant; nor shall it be responsible to make or be liable for any adjustments required under any provision hereof, including but not limited to Section 11 hereof, or responsible for the manner, method or amount of any such adjustment or the ascertaining of the existence of facts that would require any such adjustment; nor shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any shares of Common Stock to be issued pursuant to this Warrant Agreement or any Warrant or as to whether any shares of Common Stock will, when issued, be validly issued and fully paid and nonassessable or as to the Exercise Price or the number of Warrant Shares issuable upon exercise of any warrant.
(r) Notwithstanding anything to the contrary contained herein, the Company shall make all determinations with respect to Cashless Exercises, and the Warrant Agent shall have no duty or obligation to investigate or confirm whether the Company’s determination regarding the number of Shares to be issued in the event of a Cashless Exercise is accurate or correct. Notwithstanding anything to the contrary contained herein, the Warrant Agent shall also have no duty or obligation to investigate or confirm whether any determination of the Exercise Amount under Section 8 is correct or accurate.
(s) No provision of this Warrant Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights.
(t) All rights and obligations contained in this Section 18 and Section 19 hereof shall survive the termination of this Warrant Agreement and the resignation, replacement or removal of the Warrant Agent.
Appears in 2 contracts
Sources: Warrant Agreement (Visteon Corp), Warrant Agreement (Visteon Corp)
Warrant Agent. The Company hereby appoints Warrant Agent undertakes the duties and obligations imposed by this Agreement (and no implied duties or obligations shall be read into this Agreement against the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, Agent) upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except to the extent that any such statements describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as otherwise provided herein.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it of its own selection (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided . The Warrant Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or through agents or attorneys and the Warrant Agent shall have exercised reasonable not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care in the selection and continued employment of such counselby it hereunder.
(d) The Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Warrant Agent and conforming to the requirements of this Agreement. The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument (whether in its original or facsimile form) believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company hereby agrees to (A) pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement such compensation for the all services rendered by the Warrant Agent. The Agent in the administration and execution of this Agreement as the Company and the Warrant Agent shall also agree to in writing, (B) reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the performance execution of this Agreement.
Agreement (fincluding fees and expenses of its counsel) The Company shall and (C) indemnify the Warrant Agent (and any predecessor Warrant Agent) and hold it harmless against any and all liabilitiesclaims (whether asserted by the Company, a holder or any other person), damages, losses, expenses (including taxes other than taxes based on the income of the Warrant Agent) and liabilities (including judgments, costs and counsel feesfees and expenses), suffered or incurred by the Warrant Agent for anything done or omitted by the Warrant Agent in connection with its performance the execution of this Agreement, Agreement except as a result of the Warrant Agent's its negligence or bad faithwillful misconduct. In no case The provisions of this Section 15(e) shall survive the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised expiration of the likelihood Warrants and the termination of such loss or damagethis Agreement.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered holders of Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity satisfactory to it for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own negligence or willful misconduct. The Warrant Agent shall not be liable for any error of judgment made in good faith by it, unless it shall be proved that the Warrant Agent was negligent in ascertaining the pertinent facts. Notwithstanding anything in this Agreement to the contrary, in no event shall the Warrant Agent be liable for any special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of the loss or damage and regardless of the form of the action.
(i) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of any Warrant Certificate to make or cause to be made any adjustment of the Exercise Price or number of the Warrant Shares or other securities or property deliverable as provided in this Agreement, or to determine whether any facts exist which may require any such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto.
(j) Notwithstanding anything in this Agreement to the contrary, neither the Company nor the Warrant Agent shall have any liability to any holder of a Warrant Certificate or other Person as a result of its inability to perform any of its obligations under this Agreement by reason of any preliminary or permanent injunction or other order, decree or ruling issued by a court of competent jurisdiction or by a governmental, regulatory or administrative agency or commission, or any statute, rule, regulation or executive order promulgated or enacted by any governmental authority prohibiting or otherwise restraining performance of such obligation; provided, however that (A) the Company must use its reasonable best efforts to have any such order, decree or ruling lifted or otherwise overturned as soon as possible and (B) nothing in this Section 15(j) shall affect the Company's obligation under Section 6(e) hereof to use its best efforts to have a registration statement in effect covering the Warrant Shares issuable upon exercise of the Warrants and to maintain a current prospectus relating to those Warrant Shares.
(k) Any application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent and based solely on the advise of the Warrant Agent's legal counsel, set forth in writing any action proposed to be taken or omitted by the Warrant Agent under this Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Warrant Agent shall not be liable for any action taken by, or omission of, the Warrant Agent in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any officer of the Company actually receives such application, unless any such officer shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Warrant Agent shall have received written instructions in response to such application specifying the action to be taken or omitted.
(l) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights.
(m) In addition to the foregoing, the Warrant Agent shall be protected and shall incur no liability for, or in respect of, any action taken or omitted by it in connection with its administration of this Agreement if such acts or omissions are not the result of the Warrant Agent's reckless disregard of its duty, gross negligence or willful misconduct and are in reliance upon (A) the proper execution of the certification concerning beneficial ownership appended to the form of assignment and the form of the election attached hereto unless the Warrant Agent shall have actual knowledge that, as executed, such certification is untrue, or (B) the non-execution of such certification including, without limitation, any refusal to honor any otherwise permissible assignment or election by reason of such non-execution.
Appears in 2 contracts
Sources: Warrant Agreement (National Energy Resources Acquisition CO), Warrant Agreement (National Energy Resources Acquisition CO)
Warrant Agent. The Company hereby appoints Warrant Agent undertakes the duties and obligations explicitly imposed by this Agreement (and no implied duties or obligations shall be read into this Agreement against the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, Agent) upon the following terms and conditions conditions, by all of which Holdings and the Company and every Warrant Holderholders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of Holdings and the Company. The Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company Holdings to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by Holdings.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), Holdings) and the Warrant Agent shall incur no liability or responsibility to the Company Holdings or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(di) The Warrant Agent shall incur no liability or responsibility to the Company Holdings or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(ii) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties or in the exercise of its rights hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured to it.
(iii) Notwithstanding anything in this Agreement to the contrary, in no event shall the Warrant Agent be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if the Warrant Agent has been advised of the likelihood of the loss or damage and regardless of the form of action.
(iv) The provisions of this Section 12(d) shall survive the expiration of the Warrants and the termination of this Agreement.
(e) The Company Holdings agrees to pay to the Warrant Agent such compensation as shall be agreed to in writing between Holdings and the amount(s) described in Schedule A to this Agreement Warrant Agent for the all services rendered by the Warrant Agent. The Company shall also Agent in the execution of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the performance execution of this Agreement.
(f) The Company shall Agreement and to indemnify the Warrant Agent and hold save it harmless against any and all liabilities, including judgments, costs and reasonable counsel feesfees and expenses, incurred for anything done or omitted by the Warrant Agent in connection with its performance the execution of this Agreement, Agreement except as a result of the Warrant Agent's its gross negligence or bad faith. In no case The provisions of this Section 12(e) shall survive the expiration of the Warrants and the termination of this Agreement.
(f) Holdings shall indemnify the Warrant Agent be liable for specialagainst any and all losses, indirectliabilities or expenses incurred by it arising out of or in connection with the acceptance or administration of its duties under this Warrant Agreement, incidental including the costs and expenses of enforcing this Warrant Agreement against Holdings (including this Section 12(f)) and defending itself against any claim (whether asserted by Holdings or consequential loss any holder or damage any other person) or liability in connection with the exercise or performance of any kind whatsoeverof its powers or duties hereunder, even if except to the Warrant Agent has been advised of the likelihood of extent any such loss loss, liability or damage.
(g) expense may be attributable to its gross negligence or bad faith. The Warrant Agent shall be under no obligation to institute notify Holdings promptly of any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity claim for any costs and expenses which it may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of seek indemnity. Failure by the Warrant Agent to take such action as so notify Holdings shall not relieve Holdings of its obligations hereunder. Holdings shall defend the claim and the Warrant Agent mayshall cooperate in the defense. The Warrant Agent may have separate counsel and Holdings shall pay for reasonable fees and expenses of such counsel. Holdings need not pay for any settlement made without its consent, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnitywhich consent shall not be unreasonably withheld. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to . The provisions of this Section 12(f) shall survive the terms set forth in expiration of the Warrant CertificatesWarrants and the termination of this Agreement.
(hg) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Holdings or become pecuniarily interested in any transaction in which the Company Holdings may be interested, or contract with or lend money to the Company, Holdings or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company Holdings or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for Holdings, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own gross negligence or bad faith.
(i) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of any Warrant Certificate to make or cause to be made any adjustment of the Exercise Price or number of the Warrant Shares or other securities or property deliverable as provided in this Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and non-assessable, and makes no representation with respect thereto.
(j) The Warrant Agent may assume that any Warrant exercised is permitted to be exercised under applicable law and shall have no liability for acting in reliance upon such assumption; provided, however, that the Warrant Agent may not accept payment of the Exercise Price in cash, by wire transfer or by certified or official bank check payable to the order of Holdings unless the Warrant Agent shall have received written notice from Holdings pursuant to Section 4.2 hereof that a Registered Period is in existence.
Appears in 2 contracts
Sources: Warrant Agreement (Xm Satellite Radio Holdings Inc), Warrant Agreement (Xm Satellite Radio Inc)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent duties and obligations of registrar for the Company, and the Warrant Agent hereby accepts such appointment, Warrants imposed by this Agreement upon the following terms and conditions conditions, by all of which the Company and every Warrant Holder, the holders of Warrants by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as described the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant Agent.Certificates except as herein otherwise provided;
(b) The Warrant Agent shall not be responsible for any the failure of the Company to comply with any of the Company's covenants contained in this Agreement or in on the Warrant Certificates.Certificates to be complied with by the Company;
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.;
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.;
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the services rendered by the Warrant AgentAgent in the execution of this Agreement. The Company shall also agrees to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the performance execution of this Agreement.
(f) The Company shall Agreement and to indemnify the Warrant Agent and hold save it harmless against any and all liabilities, including judgments, costs expenses and counsel fees, incurred for anything done or omitted by the Warrant Agent in connection with its performance the execution of this Agreement, Agreement except as a result of the Warrant Agent's negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.;
(g) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hf) The Warrant Agent and any shareholderstockholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity;
(g) Except as set forth in Section 13, the Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own negligence or bad faith; and
(h) The Warrant Agent is hereby authorized and directed to accept instructions with respect to the performance of its duties hereunder from the Chief Executive Officer of the Company, or any Senior Vice President or the Treasurer of the Company, and to apply to such officers for advise or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions of any such officer.
Appears in 2 contracts
Sources: Warrant Agreement (Flagstar Companies Inc), Warrant Agreement (Flagstar Companies Inc)
Warrant Agent. (a) The Company hereby appoints the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, upon the following terms and conditions by all of which the Company and every Warrant Holder, by acceptance of a Warrant, shall be bound:
(a) Statements contained in this Agreement and in the Warrant Certificates shall be taken as statements of the Company. The Warrant Agent assumes responsibility hereunder only for the correctness of any statement which describes agree that the Warrant Agent and/or for action taken or to be taken by will serve as an agent of the Warrant AgentCompany as set forth in this Agreement.
(b) The Warrant Agent shall not by any act hereunder be deemed to make any representation as to validity or authorization of the Series E Warrants or the Warrant Certificates (except as to its countersignature thereon) or of any securities or other property delivered upon exercise of any Series E Warrant, or as to the number or kind or amount of securities or other property deliverable upon exercise of any Series E Warrant or the correctness of the representations of the Company made in such certificates that the Warrant Agent receives.
(c) The Warrant Agent shall not have any duty to calculate or determine any required adjustments with respect to the Exercise Price or the kind and amount of securities or other property receivable by Holders upon the exercise of Series E Warrants, nor to determine the accuracy or correctness of any such calculation.
(d) The Warrant Agent shall not (i) be liable for any recital or statement of fact contained herein or in the Warrant Certificates or for any action taken, suffered or omitted by it in good faith in the belief that any Warrant Certificate or any other document or any signature is genuine or properly authorized, (ii) be responsible for any failure of by the Company to comply with any of the Company's covenants its obligations contained in this Agreement or in the Warrant Certificates, (iii) be liable for any act or omission in connection with this Agreement except for its own gross negligence or willful misconduct or (iv) have any responsibility to determine whether a transfer of a Series E Warrant complies with applicable securities laws.
(ce) The Warrant Agent is hereby authorized to accept instructions with respect to the performance of its duties hereunder from the Chief Executive Officer, the President, any Vice President, the Treasurer, or the Secretary or any Assistant Secretary of the Company and to apply to any such officer for written instructions (which will then be promptly given) and the Warrant Agent shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with the instructions of any such officer, except for its own gross negligence or willful misconduct, but in its discretion the Warrant Agent may in lieu thereof accept other evidence of such or may require such further or additional evidence as it may deem reasonable.
(f) The Warrant Agent may exercise any of the rights and powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys, agents or employees, provided reasonable care has been exercised in the selection and in the continued employment of any persons. The Warrant Agent shall not be under any obligation or duty to institute, appear in or defend any action, suit or legal proceeding in respect hereof, unless first indemnified to its satisfaction. The Warrant Agent shall promptly notify the Company in writing of any claim made or action, suit or proceeding instituted against or arising out of or in connection with this Agreement.
(g) The Company will take such action as may reasonably be required by the Warrant Agent in order to enable it to carry out or perform its duties under this Agreement.
(h) The Warrant Agent shall act solely as agent of the Company hereunder. The Warrant Agent shall only be liable for the failure to perform such duties as are specifically set forth herein.
(i) The Warrant Agent may consult at any time with legal counsel satisfactory to it (who may be legal counsel for the Company), and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder in respect of for any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(ej) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement compensation for the all services rendered by the Warrant Agent. The Agent hereunder as the Company shall also and the Warrant Agent may agree from time to time, and to reimburse the Warrant Agent for all expensesreasonable expenses incurred in connection with the execution and administration of this Agreement (including the reasonable compensation and expenses of its counsel), taxes and governmental charges and all other charges of any kind or nature incurred by further agrees to indemnify the Warrant Agent for, and hold it harmless against, any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on its part, arising out of or in connection with the performance acceptance and administration of this Agreement.
(f) The Company shall indemnify the Warrant Agent and hold it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred in connection with its performance of this Agreement, except as a result of the Warrant Agent's negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(gk) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(h) The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent Agent, may buy, sell or deal in any of the Series E Warrants or other securities of the Company, Company or its Affiliates or become pecuniarily interested in any transaction transactions in which the Company or its Affiliates may be interested, or contract with or lend money to the Company, Company or its Affiliates or otherwise act as fully and freely as though it were not the Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entityPerson.
(l) No resignation or removal of the Warrant Agent and no appointment of a successor warrant agent shall become effective until the acceptance of appointment by the successor warrant agent as provided herein. The Warrant Agent may resign its duties and be discharged from all further duties and liability hereunder (except liability arising as a result of the Warrant Agent’s own gross negligence or willful misconduct) after giving written notice to the Company. The Company may remove the Warrant Agent upon written notice, and the Warrant Agent shall thereupon in like manner be discharged from all further duties and liabilities hereunder, except as aforesaid. The Warrant Agent shall, at the Company’s expense, cause to be mailed (by first class mail, postage prepaid) to each Holder of a Series E Warrant at such Holder’s last address as shown on the register of the Company maintained by the Warrant Agent a copy of said notice of resignation or notice of removal, as the case may be. Upon such resignation or removal, the Company shall appoint in writing a new warrant agent. If the Company fails to do so within a period of 30 days after it has been notified in writing of such resignation by the resigning Warrant Agent or after such removal, then the resigning Warrant Agent or the Holder of any Series E Warrant may apply to any court of competent jurisdiction for the appointment of a new warrant agent. After acceptance in writing of such appointment by the new warrant agent, it shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent. Not later than the effective date of any such appointment, the Company shall give notice thereof to the resigning or removed Warrant Agent. Failure to give any notice provided for in this Section 15(l), however, or any defect therein, shall not affect the legality or validity of the resignation of the Warrant Agent or the appointment of a new warrant agent, as the case may be.
(m) Any corporation into which the Warrant Agent or any new warrant agent may be merged or any corporation resulting from any consolidation to which the Warrant Agent or any new warrant agent shall be a party or any corporation to which the Warrant Agent transfers substantially all of its corporate trust business shall be a successor Warrant Agent under this Agreement without any further act, provided that such corporation (i) would be eligible for appointment as successor to the Warrant Agent under the provisions of Section 15(l) or (ii) is a wholly owned subsidiary of the Warrant Agent. Any such successor Warrant Agent shall promptly cause notice of its succession as Warrant Agent to be mailed (by first class mail, postage prepaid) to each Holder in accordance with Section 14.
Appears in 2 contracts
Sources: Warrant Agreement (Opexa Therapeutics, Inc.), Warrant Agreement (Opexa Therapeutics, Inc.)
Warrant Agent. The Company hereby appoints Warrant Agent undertakes the duties and obligations imposed by this Warrant Agent Agreement and the Warrant Agent to act Certificate, in each case, upon the following terms and conditions, by all of which the Company and the Holders of Warrants, by their acceptance thereof, will be bound:
(a) The statements contained herein and in the Warrant Certificates will be taken as the agent statements of the Company, and the Warrant Agent hereby accepts such appointment, upon the following terms and conditions by all of which the Company and every Warrant Holder, by acceptance of a Warrant, shall be bound:
(a) Statements contained in this Agreement and in the Warrant Certificates shall be taken as statements of the Company. The Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall will not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Warrant Agent Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), ) and the Warrant Agent shall will incur no liability or responsibility to the Company or to any Holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care absent gross negligence, bad faith or willful misconduct (each as determined by a final order, judgment, ruling or decree of a court of competent jurisdiction) in the selection and continued employment retention of such counsel and the reliance on such counsel's advice.
(d) The Warrant Agent shall will incur no liability or responsibility to the Company or to any Holder of any Warrant Holder Certificate for any action taken in reliance upon on any notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or nature incurred by the Warrant Agent in the performance execution of this Warrant Agent Agreement.
(f) The . In addition, the Company shall agrees to indemnify the Warrant Agent and hold save it harmless against any and all liabilities, including judgments, reasonable costs and reasonable counsel feesfees and expenses, incurred for anything done or omitted by the Warrant Agent in connection with its performance the execution of this Agreement, Warrant Agent Agreement except as a result of its gross negligence, bad faith or willful misconduct (each as determined by a final order, judgment, ruling or decree of a court of competent jurisdiction). Notwithstanding the Warrant Agent's negligence or bad faith. In no case shall foregoing, the Warrant Agent Company will not be liable responsible for specialany settlement made without its written consent, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damagewhich consent will not be unreasonably withheld.
(gf) The Warrant Agent shall will be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Holders of Warrant Holders shall Certificates will furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall will not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Warrant Agent Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall will be brought in its name as Warrant Agent, Agent and any recovery of judgment shall will be for the ratable benefit of the Warrant Holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholder, affiliate, director, officer or employee of the Warrant Agent thereof, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement Warrant Agent Agreement, or a shareholder, affiliate, director, officer or employee of such the Warrant Agent, as the case may be. Nothing herein shall will preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent will act hereunder solely as agent for the Company, and its duties will be determined solely by the provisions hereof. The Warrant Agent will not be liable for anything which it may do or refrain from doing in connection with this Warrant Agent Agreement except for its own gross negligence, bad faith or willful misconduct (each as determined by a final order, judgment, decree or ruling of a court of competent jurisdiction).
(i) The Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Warrant Agent Agreement.
(j) The Warrant Agent will not be under any responsibility in respect of the validity of this Warrant Agent Agreement or the execution and delivery hereof (except the due and validly authorized execution hereof by the Warrant Agent) or in respect of the validity or execution of any Warrant Certificate (except its due and validly authorized countersignature thereof), nor will the Warrant Agent by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of the Warrant Shares to be issued pursuant to this Warrant Agent Agreement or any Warrant Certificate or as to whether the Warrant Shares will when issued be validly issued, fully paid and nonassessable or as to the Exercise Price or the number of Warrant Shares issuable upon exercise of any Warrant.
(k) The Warrant Agent is hereby authorized and directed to accept instructions with respect to the performance of its duties hereunder from the Officers and to apply to the Officers for advice or instructions in connection with its duties, and such instructions will be full authorization and protection to the Warrant Agent and the Warrant Agent will not be liable for any action taken, suffered to be taken, or omitted to be taken by it in good faith in accordance with instructions of the Officer or in good faith reliance upon any statement signed by any one of the Officers with respect to any fact or matter (unless other evidence in respect thereof is herein specifically prescribed) which may be deemed to be conclusively proved and established by such signed statement.
(l) If the Warrant Agent will receive any notice or demand (other than notice of or demand for exercise of Warrants) addressed to the Company by any Holder pursuant to the provisions of the Warrant Certificates, the Warrant Agent will promptly forward such notice or demand to the Company.
(m) No provision of this Warrant Agent Agreement will be construed to relieve the Warrant Agent from liability for its own gross negligence, bad faith or willful misconduct.
Appears in 2 contracts
Sources: Warrant Agent Agreement (Oglebay Norton Co /Ohio/), Warrant Agent Agreement (Oglebay Norton Co /Ohio/)
Warrant Agent. The Company hereby appoints Warrant Agent undertakes the duties and obligations imposed by this Agreement (and no implied duties or obligations shall be read into this Agreement against the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, Agent) upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe Warrantholders, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates and the Warrant Share Certificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it of its own selection (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder Warrantholder in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder Warrantholder for any action taken in reliance upon on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument (whether in its original or facsimile form) believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees (i) to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent (including fees and expenses of its counsel) and to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges and disbursements of any kind or and nature incurred by the Warrant Agent in the preparation, delivery, execution, administration and amendment of this Agreement and the exercise and performance of this Agreement.
its duties hereunder and (fii) The Company shall to indemnify the Warrant Agent (and hold any predecessor Warrant Agent) and save it harmless against any and all claims (whether asserted by the Company, a holder or any other person), damages, losses, fines, penalties, settlements, expenses (including taxes other than taxes based on the income of the Warrant Agent), liabilities, including judgments, costs and counsel feesfees and expenses, incurred for any action taken, suffered or omitted to be taken by the Warrant Agent in connection with its performance the execution of this Agreement and the acceptance and administration of this Agreement, except as a result of its gross negligence or willful misconduct (each as finally determined by a court of competent jurisdiction). The costs and expenses incurred in enforcing this right of indemnification shall be paid by the Company. The provisions of this Section 14 shall survive the expiration of the Warrants, the termination of this Agreement and the resignation or removal of the Warrant Agent's negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders registered Warrantholders shall furnish the Warrant Agent with reasonable security and indemnity satisfactory to it for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect limit the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or Warrant Share Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, affiliate, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for any action taken, suffered or omitted to be taken by it in connection with this Agreement except for its own gross negligence or willful misconduct, each as finally determined by a court of competent jurisdiction. Anything to the contrary notwithstanding, in no event shall the Warrant Agent be liable for special, punitive, indirect, consequential or incidental loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(i) The Warrant Agent shall not at any time be under any duty or responsibility to any Warrantholder to make or cause to be made any adjustment of the Exercise Price or number of the Warrant Shares or other securities or property deliverable as provided in this Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto.
(j) Notwithstanding anything in this Agreement to the contrary, neither the Company nor the Warrant Agent shall have any liability to any Warrantholder or other person as a result of its inability to perform any of its obligations under this Agreement by reason of any preliminary or permanent injunction or other order, decree or ruling issued by a court of competent jurisdiction or by a governmental, regulatory or administrative agency or commission, or any statute, rule, regulation or executive order promulgated or enacted by any governmental authority prohibiting or otherwise restraining performance of such obligation; provided that the Company must use its reasonable best efforts to have any such order, decree or ruling lifted or otherwise overturned as soon as possible.
(k) With respect to the exercise by a Warrantholder of any Warrants in accordance with the terms of this Agreement and with respect to any other actions or omissions that may arise as a result of or under this Agreement, to the extent the Warrant Agent has any questions or uncertainties as to what actions it should take with respect thereto, the Warrant Agent may seek written direction from the Company as to what course of action the Warrant Agent should take and the Warrant Agent shall be fully protected and incur no liability in refraining from taking any action thereunder unless and until the Warrant Agent has received such written direction from the Company. Any application by the Warrant Agent for such written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent under this Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Warrant Agent shall not be liable for any action taken by, or omission of, the Warrant Agent in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any officer of the Company actually receives such application, unless any such officer shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Warrant Agent shall have received written instructions in response to such application specifying the action to be taken or omitted.
(l) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured to it.
(m) Whenever in the performance of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate signed by any one of the President, a Vice President, the Treasurer or the Secretary of the Company and delivered to the Warrant Agent; and such certificate shall be full authorization and protection to the Warrant Agent for any action taken or suffered by it under the provisions of this Agreement in reliance upon such certificate.
(n) The Warrant Agent is hereby authorized and directed to accept instructions with respect to the performance of its duties hereunder from any one of the President, a Vice President, the Secretary or the Treasurer of the Company, and to apply to such officers for advice or instructions in connection with its duties, and such instructions shall be full authorization and protection to the Warrant Agent, and the Warrant Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with instructions of any such officer.
(o) The Warrant Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys or agents, and the Warrant Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorneys or agents or for any loss to the Company resulting from any such act, default, neglect or misconduct, absent gross negligence or willful misconduct (each as finally determined by a court of competent jurisdiction) in the selection and continued employment thereof.
Appears in 2 contracts
Sources: Note Repurchase, Exchange and Termination Agreement (Ibasis Inc), Warrant and Registration Rights Agreement (Ibasis Inc)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of duties and obligations imposed by the Company, and the Warrant Agent hereby accepts such appointment, Agreement upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes their correctness, except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the execution, delivery or distribution of the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement herein or in the Warrant CertificatesCertificates nor shall it at any time be under any duty or responsibility to any Warrantholder to make or cause to be made any adjustment in the Exercise Price (except as instructed by the Company), or to determine whether any facts exist which may require any adjustments, or with respect to the nature or extent of or method employed in making any adjustments when made.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of a Warrant Holder in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of a Warrant Holder for any action taken in reliance upon on any notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent hereunder, to reimburse the Warrant Agent upon demand for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the performance execution of this Agreement.
(f) The Company shall its duties hereunder, and to indemnify the Warrant Agent and hold save it harmless against any and all liabilitieslosses, liabilities and expenses, including judgments, costs and counsel fees, incurred for anything done or omitted by the Warrant Agent arising out of or in connection with its performance of this Agreement, the Agreement except as a result of the Warrant Agent's its negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding proceedings or to take any other action likely to involve expense unless the Company or one or more Warrant Holders registered holders of the Warrants shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnityincurred. All rights of action under this the Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderShareholder, director, officer or employee of the Warrant Agent thereof, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant Agentthe Agreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything it may do or refrain from doing in connection with the Agreement except for its own negligence or bad faith.
(i) The Company will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of the Agreement.
(j) The Warrant Agent shall not be under any responsibility in respect of the validity of the Agreement or the execution and delivery hereof (except its countersignature thereof); nor shall the Warrant Agent by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of the Shares to be issued pursuant to the Agreement or any Warrant or as to whether the Shares will when issued be validly issued, fully paid and non-assessable or as to the Exercise Price or the number of Shares issuable upon exercise of any Warrant.
(k) The Warrant Agent is hereby authorized and directed to accept instructions with respect to the performance of its duties hereunder from the Chairman of the Board, the President, the Secretary or an Assistant Secretary of the Company, and to apply to those officers for advice or instructions in connection with its duties, and shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions of any of those officers or in good faith reliance upon any statement signed by any one of those officers of the Company with respect to any fact or matter (unless other evidence in respect thereof is herein.specifically prescribed) which may be deemed to be conclusively proved and established by such signed statement.
Appears in 2 contracts
Sources: Warrant Agreement (Ppa Technologies Inc), Warrant Agreement (Ppa Technologies Inc)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as the warrant agent of the CompanyCompany with respect to the Warrants, and the Warrant Agent hereby accepts such appointment, appointment upon and subject to the following express terms and conditions by set forth herein (and no implied terms or conditions) all of which the Company and every Warrant Holder, by acceptance of a Warrantsuch Warrant Holder's Warrant Certificates, shall be bound, including but not limited to the following:
(a) Statements contained in this Agreement and in the Warrant Certificates Certificate shall be taken as statements of the CompanyCompany only. The Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which of the same or be required to verify the same except for such provisions of this Agreement that describes the Warrant Agent and/or for or the action taken or to be taken by the Warrant Agent hereunder. The Warrant Agent shall not be under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except the due execution hereof by the Warrant Agent) or in respect of the validity or execution of any Warrant or any purchase agreement related thereto; nor shall it be responsible for any breach by the Company of any covenant or condition contained in this Agreement, any Warrant or in any other agreement or document related thereto; nor shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any Common Stock to be issued pursuant to this Agreement or any Warrant or as to whether any Common Stock will, when issued, be duly authorized, validly issued, fully paid and nonassessable; nor shall it have any duty or responsibility in the case of the receipt of any written demand from any Warrant Holder with respect to any such action or default by the Company, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.
(b) The Warrant Agent shall not be liable or responsible for any failure of the Company to comply with any of the Company's duties, covenants or obligations contained in this Agreement Agreement, the Warrant Certificates or in the Warrant Certificatesany other agreement or document.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), Company or an employee of the Warrant Agent) and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder other person or entity in respect of any action taken, suffered or omitted to be taken by it hereunder in good the absence of bad faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) From time to time, the Company may provide the Warrant Agent with written instructions concerning the services to be performed by the Warrant Agent hereunder. In addition, at any time the Warrant Agent may apply to any officer of the Company for written instruction with respect to any fact or matter arising in connection with the services to be performed by the Warrant Agent under this Agreement, and such fact or matter shall be deemed to be conclusively proved or established by any written Company instructions or other notice, resolution, waiver, consent, order, certificate or other paper, document or instrument issued in response thereto. The Warrant Agent and its agents and subcontractors shall incur no liability or responsibility to the not be liable and shall be indemnified by Company or to any Warrant Holder for any action taken, suffered or omitted to be taken by it in reliance upon any Company instructions or any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties. The Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from the Company.
(e) The Company agrees to pay to the Warrant Agent from time to time [reasonable compensation] [compensation in accordance with the amount(s) described in Schedule A to this Agreement fee schedule attached as Exhibit C hereto] for the all services rendered by the Warrant Agent. The Company shall also reimburse the Warrant Agent rendered, together with reimbursement for all expenses, taxes and governmental charges and all other charges of any kind or nature incurred by the Warrant Agent Agent, in connection with the execution and administration of this Agreement and the exercise and performance of this Agreement.
(f) The Company shall its duties hereunder, and to indemnify the Warrant Agent and hold save it harmless against any and all liabilities, including judgments, costs and counsel feesfees and expenses, incurred in connection with its performance of this Agreement, except as a result of the Warrant Agent's own gross negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental faith or consequential loss or damage willful misconduct (each as determined by a final judgment of any kind whatsoever, even if the Warrant Agent has been advised a court of the likelihood of such loss or damagecompetent jurisdiction).
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action it believes is likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which that may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment on behalf of the Warrant Holders shall be for the ratable benefit of the Warrant Holders as their respective rights or interests interest may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent (and its affiliates) and any shareholderstockholder, director, officer officer, agent or employee of the Warrant Agent (or any of its affiliates) may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company or any Warrant Holder may be interested, or contract with or lend money to the Company, Company or any Warrant Holder or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other person or legal entity.
(h) The Warrant Agent shall be liable hereunder only for its own gross negligence, bad faith and willful misconduct (each as determined by a final judgment of a court of competent jurisdiction).
(i) The Warrant Agent may perform any of its duties hereunder either directly or by or through agents or attorneys, and the Warrant Agent shall not be liable for any act or failure to act by any such agent or attorney absent gross negligence, bad faith or willful misconduct (each as determined by a final judgment of a court of competent jurisdiction) in the selection and assignment of tasks to any such agent or attorney.
(j) The Warrant Agent shall not be obligated to expend or risk its own funds or to take any action that it believes would expose or subject it to expense or liability or to a risk of incurring expense or liability, unless it has been furnished with assurances of repayment or indemnity satisfactory to it.
(k) The Warrant Agent shall not be liable or responsible for any failure of the Company to comply with any of its obligations relating to the registration of securities under this Agreement or any Warrant, including without limitation obligations under applicable regulation or law.
(l) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement.
(m) The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any Warrants authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of the proceeds of the issue and sale, or exercise, of Warrants.
(n) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof (and no duties or obligations shall be inferred or implied). The Warrant Agent shall not assume any obligations or relationship of agency or trust with any of the owners or holders of the Warrants.
(o) The Warrant Agent may rely on and be fully authorized and protected in acting or failing to act upon (a) any guaranty of signature by an "eligible guarantor institution" that is a member or participant in the Securities Transfer Agents Medallion Program or other comparable "signature guarantee program" or insurance program in addition to, or in substitution for, the foregoing; or (b) any law, act, regulation or any interpretation of the same even though such law, act, or regulation may thereafter have been altered, changed, amended or repealed.
(p) The Warrant Agent shall at all times be entitled to the rights, protections and indemnities set forth herein, whether acting as warrant agent or in any other capacity hereunder.
Appears in 2 contracts
Sources: Warrant Agent Agreement (Cel Sci Corp), Warrant Agent Agreement (Cel Sci Corp)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as the agent of the Company, undertakes only those duties and the Warrant Agent hereby accepts such appointment, obligations specifically imposed on it by this Agreement upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The , and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument (whether in original or facsimile form) believed by it to be genuine and to have been signed, sent or presented by the proper party or parties. The Warrant Agent need not investigate any fact or matter stated in such document.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent in the execution of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the performance execution of this Agreement.
(f) . The Company shall indemnify the Warrant Agent and its agents, employees, officers, directors and shareholders for, and hold it same harmless against against, any and all losses, liabilities, claims, damages or expenses (including judgments, costs without limitation reasonable attorney's fees and counsel fees, expenses) incurred by it arising out of or in connection with the acceptance or administration of its duties under this Warrant Agreement, including the costs and expenses of enforcing this Warrant Agreement against the Company and defending itself against any claim (whether asserted by the Company or any Warrant holder or any other person) or liability in connection with the exercise or performance of this Agreementany of its powers or duties hereunder, except as to the extent any such loss, liability or expense is determined by a result court of competent jurisdiction to have been cause by its gross negligence or willful misconduct. The Warrant Agent shall notify the Company promptly of any claim for which it may seek indemnity. Failure by the Warrant Agent to so notify the Company shall not relieve the Company of its obligations hereunder. At the Warrant Agent's negligence or bad faith. In no case sole discretion, the Company shall defend the claim and the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if shall cooperate in the defense at the Company's expense. The Warrant Agent has been advised of may have separate counsel and the likelihood Company shall pay the reasonable fees and expenses of such loss counsel. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld. The benefits of this Section shall survive termination of this Agreement or damagechange of Warrant Agent.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders registered holders of Warrants shall furnish the Warrant Agent with reasonable security and indemnity satisfactory to it for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own gross negligence or willful misconduct.
(i) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of any Warrant Certificate to make or cause to be made any adjustment of the Exercise Price or number of the Warrant Shares or other securities or property deliverable as provided in this Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto.
(j) The Warrant Agent shall not be required to, and shall not, expend or risk any of its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder.
(k) In no event shall the Warrant Agent be liable for any consequential, punitive or special damages, or for the acts or omissions of its nominees, correspondents, designees, subagents or subcustodians.
(l) The Warrant Agent shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Warrant Agent (including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or war, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility).
(m) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Warrant Agent hereunder, the Warrant Agent may, in its sole discretion, refrain from taking any action other than retain possession of the Warrant Shares, unless the Warrant Agent receives written instructions, signed by the Company, which eliminates such ambiguity or uncertainty.
Appears in 1 contract
Sources: Warrant Agreement (TMM Holdings)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, duties and the Warrant Agent hereby accepts such appointment, obligations imposed by this Agreement upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements of fact and recitals contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The , and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by the Warrant Agentit.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company, nor shall it at any time be under any duty or responsibility to any holder of a Warrant to make or cause to be made any adjustment in the Exercise Price or in the number of Shares issuable (except as instructed by the Company), or to determine whether any facts exist which may require any such adjustments, or with respect to the nature or extent of or method employed in making any such adjustments when made.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument reasonably believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent under this Agreement, to reimburse the Warrant Agent upon demand for all reasonable expenses, taxes disbursements and governmental charges and all other charges of any kind advances incurred or nature incurred made by the Warrant Agent in accordance with the performance provisions of this Agreement and to indemnify the Warrant Agent and save it harmless against any and all losses, liabilities and expenses, including judgments, costs and reasonable counsel fees, incurred without negligence, bad faith or willful misconduct on its part, for anything done or omitted by the Warrant Agent arising out of or in connection with this Agreement.
(f) The Company shall indemnify the Warrant Agent and hold it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred in connection with its performance of this Agreement, except as a result of the Warrant Agent's negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(g) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered holders of Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as incurred.
(g) The Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(h) The Warrant Agent and any shareholderstockholder, director, officer or employee of the Warrant Agent thereof, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not the Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties are only such duties as are specifically set forth in this Agreement.
(i) The Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement.
(j) The Warrant Agent shall not be under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof by the Company or in respect of the validity or execution of any Warrant Certificate by the Company; nor shall the Warrant Agent by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of the Shares to be issued pursuant to this Agreement or any Warrant Certificate or as to whether the Shares will when issued be validly issued, fully paid and nonassessable or, except with respect to the accuracy of the records kept by it pursuant to Section 5 hereof, as to the Exercise Price or the number of Shares issuable upon exercise of any Warrant.
(k) The Warrant Agent is hereby authorized and directed to apply to and to accept instructions with respect to the performance of its duties hereunder from the President, Chief Executive Officer, any Vice President, the Secretary or an Assistant Secretary of the Company, and to apply to such officers for advice or instructions in connection with its duties, and shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with the terms of this Agreement and instructions of any such officer.
Appears in 1 contract
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, duties and the Warrant Agent hereby accepts such appointment, obligations imposed by this Agreement upon the following terms and conditions conditions, by all of which the Company and every Warrant Holder, the holders of Warrants by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates Warrants shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as described the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the Warrant Agentexecution, delivery or distribution of the Warrants except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrants to be complied with by the Company nor shall it at any time be under any duty or responsibility to any holder of a Warrant Certificatesto make or cause to be made any adjustment in the Exercise Price or in the number of shares issuable (except as instructed in writing by the Company), or to determine whether any facts exist which may require any adjustments, or with respect to the nature or extent of or method employed in making any adjustments when made, or to verify the accuracy of any representation made to it by the Company as to a change in the Exercise Price or the amount of shares which may be purchased with a warrant.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), Company or an employee of the Warrant Agent) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the tot he Company or to any Warrant Holder holder for any action taken in reliance upon on any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to shall pay to the Warrant Agent the amount(s) described in Schedule A to for its services under this Agreement for the services rendered by the Warrant Agent. The Company such compensation as they shall also agree upon, to reimburse the Warrant Agent upon demand for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the performance execution of its duties under this Agreement.
(f) The Company shall Agreement and to indemnify the Warrant Agent and hold it harmless against any and all liabilitieslosses, including liability and expenses, including, but not limited to any judgments, costs and counsel fees, incurred or anything done or omitted by the Warrant Agent arising out of or in connection with its performance of this Agreement, Agreement except as a result of the Warrant Agent's its gross negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding proceedings or to take any other action likely to involve expense expenses unless the Company or one or more Warrant Holders registered holders of Warrants shall furnish the Warrant Agent with reasonable security and indemnity indemnify the Warrant Agent for any costs and expenses which may be incurred in connection with and promptly pay such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action costs as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnitythey are incurred. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates Warrants or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent thereof, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own gross negligence or bad faith.
(i) The Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement.
(j) This Warrant Agent shall not be under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except the due execution hereof by the Warrant Agent) or in respect of the validity or execution of any Warrant (except its countersignature thereof; nor shall the Warrant Agent by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of the Shares to be issued pursuant to this Agreement or any Warrant or as to whether the Shares will when validly issued, fully paid and nonassessable or as to the Exercise Price or the number of Shares issuable upon the exercise of any Warrant.
(k) The Warrant Agent is hereby authorized and directed to accept instructions with respect to the performance of its duties hereunder from the Chairman of the Board, the President, the Secretary or an Assistant Secretary of the Company, and to apply to those officers for advice or instructions in connection with its duties, and shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instruments of any of those officers or in good faith reliance upon any statement signed by any one of those officers of the Company with respect to any fact or matter (unless other evidence in respect thereof is herein specifically prescribed) which may be deemed to be conclusively proved and established by such signed statement.
Appears in 1 contract
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, duties and the Warrant Agent hereby accepts such appointment, obligations imposed by this Agreement upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be boundbound and the rights and protection provided to the Warrant Agent shall also apply to the Warrant Registrar:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as otherwise provided herein.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company. The Warrant Agent shall not be liable for any action it takes or omits to take in good faith that it reasonably believes to be authorized or within the rights or powers conferred upon it by this Warrant Agreement.
(c) Before the Warrant Agent acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both. The Warrant Agent shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Warrant Agent may at the expense of the Company consult at any time with counsel satisfactory to it (who may be counsel for the Company), and the Warrant Agent written advice of such counsel or any Opinion of Counsel shall incur no be full and complete authorization and protection from liability or responsibility to the Company or to any Warrant Holder in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided reliance thereon. The Company shall reimburse the Warrant Agent shall have exercised reasonable care and Warrant Registrar for any expenses, including attorneys fees, incurred in connection with the selection and continued employment of such counselactions contemplated by this Section 14.
(d) The Warrant Agent may rely upon and shall incur no liability not be liable for acting or responsibility to the Company or to any Warrant Holder for any action taken in reliance refraining from acting upon any written notice, resolution, waiver, consent, order, certificate instruction or other paper, document or instrument request furnished to it hereunder and believed by it to be genuine and to have been signed, sent signed or presented by the proper party or parties. The Warrant Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document except that the Warrant Agent shall verify the signatures of these documents based on the specimen provided by the relevant party. Notwithstanding the generality of the foregoing, each Holder shall be solely responsible for making its own independent appraisal of and investigation into the financial condition, creditworthiness, condition, affairs, status and nature of the Company and any of its subsidiaries, and the Warrant Agent shall not at any time have any responsibility for the same and each Holder shall not rely on the Warrant Agent in respect thereof.
(e) The Warrant Agent shall not be required to give any bond or surety in respect of the performance of its power and duties hereunder.
(f) The Warrant Agent shall have no duty to inquire as to the performance or observance of any covenants, conditions or agreements on the part of the Company under this Agreement; but the Warrant Agent may require of the Company full information and advice as to the performance of the covenants, conditions and agreements aforesaid.
(g) The Warrant Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Warrant Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.
(h) The Company shall pay the fees and expenses of the Warrant Agent and the Warrant Registrar as may be separately agreed from time to time.
(i) The Company agrees to pay to the Warrant Agent the amount(s) described and Warrant Registrar compensation as agreed in Schedule A to this Agreement writing for the all services rendered by the Warrant Agent. The Company shall also Agent and Warrant Registrar in the execution of this Agreement, to reimburse the Warrant Agent and Warrant Registrar for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent and Warrant Registrar in the execution of this Agreement. The Company hereby unconditionally and irrevocably covenants and undertakes to indemnify and hold harmless the Warrant Agent and Warrant Registrar, its directors, officers, employees and agents (each an “indemnified party”) in full at all times against all losses, liabilities, actions, proceedings, claims, demands, penalties, damages, costs, expenses disbursements, and other liabilities whatsoever (the “Losses”), including without limitation incidental and out-of-pocket expenses and the costs and expenses of legal advisors and other experts, which may be incurred, suffered or brought against such indemnified party as a result or in connection with the acceptance or administration of its duties under this Agreement, including the costs and expenses of enforcing this Agreement against the Company (including this Section) and defending itself against any claim (whether asserted by the Company or any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder; provided that this indemnity shall not apply in respect of an indemnified party to the extent but only to the extent that a court of competent jurisdiction determines that any such Losses incurred or suffered by or brought against such indemnified party arises directly from the fraud, willful default, or gross negligence of such indemnified party. The parties hereto acknowledge that the foregoing indemnities shall survive the resignation or removal of the Warrant Agent or the termination of this Agreement.
(fj) The Company shall indemnify Notwithstanding any other term or provision of this Agreement to the contrary, the Warrant Agent and hold it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred in connection with its performance of this Agreement, except as a result of the Warrant Agent's negligence or bad faith. In no case shall the Warrant Agent not be liable under any circumstances, and shall be fully indemnified by the Company, for special, indirectpunitive, incidental indirect or consequential loss or damage of any kind whatsoeverwhatsoever including but not limited to loss of profits, even if regardless of whether the Warrant Agent has been advised of the likelihood of claim for such loss or damagedamage is in connection with the Warrant Agent’s fraud, willful default, breach of fiduciary duty or gross negligence. The provisions of this Section 14(f) shall survive the termination or expiration of this Agreement and the resignation or removal of the Warrant Agent.
(gk) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders registered holders of Warrants shall furnish the Warrant Agent with reasonable security and indemnity to its satisfaction for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hl) The Warrant Agent Agent, its affiliates and any shareholderstockholder, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(m) The Warrant Agent shall act hereunder solely as agent for the Company and need have no concern for the Holders, and its duties shall be determined solely by the provisions hereof. No implied duties shall be read into this Agreement, and the permissive rights of the Warrant Agent herein shall not be construed as its duties. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own gross negligence or willful default. The duties of the Warrant Agent and Warrant Registrar are several and not joint.
(n) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of any Warrant to make or cause to be made any adjustment of the applicable Exercise Price or number of the Warrant Shares or other securities or property deliverable as provided in this Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and non-assessable, and makes no representation with respect thereto.
(o) The Warrant Agent shall not be required to risk or expend its own funds on the performance of it obligations and duties hereunder, nor to take any action for which it reasonably believes may not be fully indemnified to its satisfaction.
(p) In the event that the Warrant Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from the Company, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action until it is directed in writing by a final order or judgment of a court of competent jurisdictions.
(q) Notwithstanding anything to the contrary contained in this Agreement, the Warrant Agent shall not be obliged to act or omit to act in accordance with any instruction, direction or request delivered to it by the Company unless such instruction, direction or request is delivered to the Warrant Agent in writing.
(r) The Warrant Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys, accountants, agents or other experts, and the Warrant Agent will not be answerable or accountable for any act, default, neglect or unintentional misconduct of any such attorneys or agents or for any loss to the Company or the holders of the Warrants resulting from any such act, default, neglect or unintentional misconduct, absent gross negligence or willful default (as each is determined by a final non-appealable order of a court of competent jurisdiction) in the selection and continued employment thereof.
(s) The Warrant Agent shall not incur any liability for not performing any act, duty, obligation or responsibility under this Warrant Agreement, arising out of or caused, directly or indirectly, by any occurrence beyond the control of the Warrant Agent (including without limitation any act or provision of any present or future law or regulation or governmental authority, any act of God, war, civil disorder or failure of any means of communication).
Appears in 1 contract
Warrant Agent. The Company hereby appoints Warrant Agent undertakes the duties and obligations imposed by this Agreement (and no implied duties or obligations shall be read into this Agreement against the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, Agent) upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it of its own selection (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided . The Warrant Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or through agents or attorneys and the Warrant Agent shall have exercised reasonable not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care in the selection and continued employment of such counselby it hereunder.
(d) The Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Warrant Agent and conforming to the requirements of this Agreement. The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument (whether in its original or facsimile form) believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement such compensation for the all services rendered by the Warrant Agent. The Agent in the administration and execution of this Agreement as the Company and the Warrant Agent shall also agree in writing to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the performance execution of this Agreement.
Agreement (fincluding fees and expenses of its counsel) The Company shall and to indemnify the Warrant Agent (and hold any predecessor Warrant Agent) and save it harmless against any and all claims (whether asserted by the Company, a holder or any other person), damages, losses, expenses (including taxes other than taxes based on the income of the Warrant Agent), liabilities, including judgments, costs and counsel feesfees and expenses, incurred for anything done or omitted by the Warrant Agent in connection with its performance the execution of this Agreement, Agreement except as a result of the Warrant Agent's its negligence or bad faithwillful misconduct. In no case The provisions of this Section 15(e) shall survive the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised expiration of the likelihood Warrants and the termination of such loss or damagethis Agreement.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered holders of Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity satisfactory to it for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything that it may do or refrain from doing in connection with this Agreement except for its own negligence or willful misconduct. The Warrant Agent shall not be liable for any error of judgment made in good faith by it, unless it shall be proved that the Warrant Agent was negligent in ascertaining the pertinent facts. Notwithstanding anything in this Agreement to the contrary, in no event shall the Warrant Agent be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of the loss or damage and regardless of the form of the action.
(i) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of any Warrant Certificate to make or cause to be made any adjustment of the Exercise Price or number of the Warrant Shares or other securities or property deliverable as provided in this Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto.
(j) Notwithstanding anything in this Agreement to the contrary, neither the Company nor the Warrant Agent shall have any liability to any holder of a Warrant Certificate or other Person as a result of its inability to perform any of its obligations under this Agreement by reason of any preliminary or permanent injunction or other order, decree or ruling issued by a court of competent jurisdiction or by a governmental, regulatory or administrative agency or commission, or any statute, rule, regulation or executive order promulgated or enacted by any governmental authority prohibiting or otherwise restraining performance of such obligation; provided that (i) the Company must use its reasonable best efforts to have any such order, decree or ruling lifted or otherwise overturned as soon as possible and (ii) nothing in this Section 15(j) shall affect the Company’s obligation under Section 6(d) to use its best efforts to have a registration statement in effect covering the Warrant Shares issuable upon exercise of the Warrants and to maintain a current prospectus relating to those Warrant Shares.
(k) Any application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent under this Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Warrant Agent shall not be liable for any action taken by, or omission of, the Warrant Agent in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any officer of the Company actually receives such application, unless any such officer shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Warrant Agent shall have received written instructions in response to such application specifying the action to be taken or omitted.
(l) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights.
(m) In addition to the foregoing, the Warrant Agent shall be protected and shall incur no liability for, or in respect of, any action taken or omitted by it in connection with its administration of this Agreement if such acts or omissions are not the result of the Warrant Agent’s reckless disregard of its duty, gross negligence or willful misconduct and are in reliance upon (i) the proper execution of the certification concerning beneficial ownership appended to the form of assignment and the form of the election attached hereto unless the Warrant Agent shall have actual knowledge that, as executed, such certification is untrue, or (ii) the non-execution of such certification including, without limitation, any refusal to honor any otherwise permissible assignment or election by reason of such non-execution.
Appears in 1 contract
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, duties and the Warrant Agent hereby accepts such appointment, obligations imposed by this Agreement upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe Holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements contained in this Agreement The Warrant Agent acts hereunder as agent and in a ministerial capacity for the Warrant Certificates Company, and its duties shall be taken as statements of determined solely by the Companyprovisions hereof. The Warrant Agent assumes responsibility hereunder only for shall not, by issuing and delivering Warrant Certificates, or by any other act hereunder, be deemed to make any representations as to the correctness validity or value or authorization of the Warrant Certificates or the Warrants represented thereby or of any statement which describes the securities or other property delivered upon exercise of any Warrant Agent and/or for action taken or to be taken by the whether any stock issued upon exercise of any Warrant Agentis fully paid and non-assessable.
(b) The Warrant Agent shall not (i) be liable for any recital or statement of fact contained herein or for any action taken, suffered or omitted by it in reliance on any Warrant Certificate or other document or instrument believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties; (ii) be responsible for any failure on the part of the Company to comply with any of the Company's its covenants and obligations contained in this Agreement or in any Warrant Certificate; (iii) be liable for any act or omission in connection with this Agreement except for its own negligence or willful misconduct; or (iv) be liable for any act or omission made in reliance upon verbal instructions of an authorized representative of the Warrant CertificatesCompany, including its legal counsel.
(c) The Warrant Agent shall be liable hereunder only for its own negligence or willful misconduct or any actions taken in bad faith. The Company agrees to indemnify the Warrant Agent and save it harmless against any and all liabilities, including judgments, costs and reasonable attorneys' fees, for anything done or omitted by the Warrant Agent in the execution of this Agreement, except as a result of the Warrant Agent's negligence, willful misconduct or bad faith.
(d) The Warrant Agent may consult at any time consult with counsel satisfactory to it (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder in respect of for any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(de) Any notice, statement, instruction, request, direction, order or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board of Directors, President or any Vice President (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder not be liable for any action taken taken, suffered or omitted by it in reliance upon any accordance with such notice, resolutionstatement, waiverinstruction, consentrequest, orderdirection, certificate order or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement for the services rendered by the Warrant Agent. The Company shall also reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or nature incurred by the Warrant Agent in the performance of this Agreementdemand.
(f) The Company shall agrees to pay the Warrant Agent reasonable compensation for its services hereunder and to reimburse it for its reasonable expenses hereunder; the Company further agrees to indemnify the Warrant Agent and hold save it harmless against any and all liabilitieslosses, including judgments, costs expenses and counsel fees, incurred in connection with its performance liabilities arising as a result of this Agreementthe Warrant Agent's actions or omissions hereunder, except as a result of the Warrant Agent's negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damagewillful misconduct.
(g) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered Holders of Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnityincurred. All rights of action under this Agreement Agreement, or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates Warrants or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for before the ratable benefit of the Warrant registered Holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(h) The Warrant Agent and any shareholderstockholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Warrants or other securities of the Company, or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company Company, or for any other legal entity.
Appears in 1 contract
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, duties and the Warrant Agent hereby accepts such appointment, obligations imposed by this Agreement upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe Holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any Holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Holder of any Warrant Holder Certificate for any action taken in reliance upon on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent in the execution of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature reasonably incurred by the Warrant Agent in the performance execution of this Agreement.
(f) The Company shall Agreement and to indemnify the Warrant Agent and hold save it harmless against any and all liabilities, including judgments, reasonable costs and counsel fees, incurred for anything done or omitted by the Warrant Agent in connection with its performance the execution of this Agreement, Agreement except as a result of the Warrant Agent's its negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Holders of Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant Agent. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
Appears in 1 contract
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, duties and the Warrant Agent hereby accepts such appointment, obligations imposed by this Agreement upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe Holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any Warrant Certificate, certificate of shares, adjustments, determination, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent reasonable compensation (which shall include the amount(sreasonable fees and expenses of its counsel) described in Schedule A to this Agreement for the all services rendered by the Warrant Agent. The Company shall also Agent in the execution, administration, preparation, delivery and amendment of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the performance execution, administration, preparation, delivery and amendment of this Agreement.
(f) . The Company shall indemnify the Warrant Agent and hold it harmless against any and all liabilitieslosses, including judgments, costs and counsel fees, liabilities or expenses incurred by it arising out of or in connection with the acceptance or administration of its duties under this Warrant Agreement, including the costs and expenses of enforcing this Warrant Agreement against the Company and defending itself against any claim (whether asserted by the Company or any Holder or any other Person) or liability in connection with the exercise or performance of this Agreementany of its powers or duties hereunder, except as a result to the extent any such loss, liability or expense may be attributable to its gross negligence or willful misconduct. The indemnity provided in this Agreement shall survive the termination of this Agreement and the resignation or removal of the Warrant Agent's negligence or bad faith. In no case The costs and expenses incurred in enforcing this right of indemnification shall be paid by the Company. The Warrant Agent shall notify the Company promptly of any claim for which it may seek indemnity. Failure by the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage to so notify the Company shall not relieve the Company of any kind whatsoever, even if its obligations hereunder. The Company shall defend the claim and the Warrant Agent has been advised of shall cooperate in the likelihood defense. The Warrant Agent may have separate counsel and the Company shall pay the reasonable fees and expenses of such loss or damagecounsel. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders registered holders of Warrants shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant Agent. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.not
Appears in 1 contract
Warrant Agent. The Company hereby appoints Warrant Agent undertakes the duties and obligations imposed by this Agreement (and no implied duties or obligations shall be read into this Agreement against the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, Agent) upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it of its own selection (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided . The Warrant Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or through agents or attorneys and the Warrant Agent shall have exercised reasonable not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care in the selection and continued employment of such counselby it hereunder.
(d) The Warrant Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Warrant Agent and conforming to the requirements of this Agreement. The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument (whether in its original or facsimile form) believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement such compensation for the all services rendered by the Warrant Agent. The Agent in the administration and execution of this Agreement as the Company and the Warrant Agent shall also agree in writing to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the performance execution of this Agreement.
Agreement (fincluding fees and expenses of its counsel) The Company shall and to indemnify the Warrant Agent (and hold any predecessor Warrant Agent) and save it harmless against any and all claims (whether asserted by the Company, a holder or any other person), damages, losses, expenses (including taxes other than taxes based on the income of the Warrant Agent), liabilities, including judgments, costs and counsel feesfees and expenses, incurred for anything done or omitted by the Warrant Agent in connection with its performance the execution of this Agreement, Agreement except as a result of the Warrant Agent's its negligence or bad faithwillful misconduct. In no case The provisions of this Section 15(e) shall survive the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised expiration of the likelihood Warrants and the termination of such loss or damagethis Agreement.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered holders of Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity satisfactory to it for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own negligence or willful misconduct. The Warrant Agent shall not be liable for any error of judgment made in good faith by it, unless it shall be proved that the Warrant Agent was negligent in ascertaining the pertinent facts. Notwithstanding anything in this Agreement to the contrary, in no event shall the Warrant Agent be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of the loss or damage and regardless of the form of the action.
(i) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of any Warrant Certificate to make or cause to be made any adjustment of the Exercise Price or number of the Warrant Shares or other securities or property deliverable as provided in this Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto.
(j) Notwithstanding anything in this Agreement to the contrary, neither the Company nor the Warrant Agent shall have any liability to any holder of a Warrant Certificate or other Person as a result of its inability to perform any of its obligations under this Agreement by reason of any preliminary or permanent injunction or other order, decree or ruling issued by a court of competent jurisdiction or by a governmental, regulatory or administrative agency or commission, or any statute, rule, regulation or executive order promulgated or enacted by any governmental authority prohibiting or otherwise restraining performance of such obligation; provided that (i) the Company must use its reasonable best efforts to have any such order, decree or ruling lifted or otherwise overturned as soon as possible and (ii) nothing in this Section 15(j) shall affect the Company’s obligation under Section 6(d) to use its best efforts to have a registration statement in effect covering the Warrant Shares issuable upon exercise of the Warrants and to maintain a current prospectus relating to those Warrant Shares.
(k) Any application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent under this Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Warrant Agent shall not be liable for any action taken by, or omission of, the Warrant Agent in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three business days after the date any officer of the Company actually receives such application, unless any such officer shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Warrant Agent shall have received written instructions in response to such application specifying the action to be taken or omitted.
(l) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights.
(m) In addition to the foregoing, the Warrant Agent shall be protected and shall incur no liability for, or in respect of, any action taken or omitted by it in connection with its administration of this Agreement if such acts or omissions are not the result of the Warrant Agent’s reckless disregard of its duty, gross negligence or willful misconduct and are in reliance upon (i) the proper execution of the certification concerning beneficial ownership appended to the form of assignment and the form of the election attached hereto unless the Warrant Agent shall have actual knowledge that, as executed, such certification is untrue, or (ii) the non-execution of such certification including, without limitation, any refusal to honor any otherwise permissible assignment or election by reason of such non-execution.
Appears in 1 contract
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, duties and the Warrant Agent hereby accepts such appointment, obligations imposed by this Agreement upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the CompanyCompany and the Warrant Agent assumes no responsibility for the correctness of any of the same. The Warrant Agent assumes no responsibility hereunder only for with respect to the correctness distribution of any statement which describes the Warrant Agent and/or for action taken or to be taken by the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it of its own selection (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument (whether in its original or facsimile form) believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent in the execution of this Agreement, to reimburse the Warrant Agent for all expenses (including legal fees and expenses), taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the performance execution of this Agreement. The Company shall fully indemnify the Warrant Agent, and any predecessor Warrant Agent, against any and all losses, liabilities, claims, damages or expenses incurred by it arising out of or in connection with the acceptance or administration of its duties under this Warrant Agreement, including the costs and expenses of enforcing this Warrant Agreement against the Company and defending itself against any claim (whether asserted by the Company or any Holder or any other person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, liability or expense is determined to have been caused by its negligence or willful misconduct. The Warrant Agent shall notify the Company promptly of any claim for which it may seek indemnity. Failure by the Warrant Agent to so notify the Company shall not relieve the Company of its obligations hereunder. The Company shall defend the claim and the Warrant Agent shall cooperate in the defense. The Warrant Agent may have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld.
(f) The Company shall indemnify the Warrant Agent and hold it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred in connection with its performance of this Agreement, except as a result of the Warrant Agent's negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(g) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders registered holders of Warrants shall furnish the Warrant Agent with reasonable security and indemnity satisfactory to it for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider propernecessary, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof, and no duties shall be inferred or implied. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own negligence or willful misconduct.
(i) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of any Warrant Certificate to make or cause to be made any adjustment of the Exercise Price or number of the Warrant Shares or other securities or property deliverable as provided in this Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto.
(j) The Warrant Agent undertakes to perform such duties and only such duties as are specifically set forth in this Warrant Agreement, and no implied covenants or obligations shall be read into this Warrant Agreement against the Warrant Agent.
(k) The Warrant Agent shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Warrant Agent was negligent in ascertaining the pertinent facts.
(l) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Warrant Agent, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Warrant Agent shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any kind by reason on such inquiry or investigation.
(m) The Warrant Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Warrant Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.
(n) The Warrant Agent shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Warrant Agreement.
(o) The Warrant Agent shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Warrant Agent has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Warrant Agent at the Corporate Trust Office of the Warrant Agent, and such notice references the Securities and this Warrant Agreement.
(p) The rights, privileges, protections, immunities and benefits given to the Warrant Agent, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Warrant Agent in each of its capacities hereunder, and to each agent, custodian and other Person employed to act hereunder.
(q) Any application by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent under this Warrant Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Warrant Agent shall not be liable for any action taken by, or omission of, the Warrant Agent in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any officer of the Company actually receives such application, unless any such officer shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Warrant Agent shall have received written instructions in response to such application specifying the action to be taken or omitted.
Appears in 1 contract
Warrant Agent. The Company hereby appoints the Warrant Agent to act as the agent of the Company, Company and the Warrant Agent hereby accepts such appointment, appointment upon the following terms and conditions by all of which the Company and every Warrant Holder, by acceptance of a Warranthis Warrant Certificates, shall be bound:
(a) Statements contained in this Agreement and in the Warrant Certificates Certificate shall be taken as statements of the Company. The Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which of the same except such as describes the Warrant Agent and/or or for action taken or to be taken by the Warrant Agent.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's ’s covenants contained in this Agreement or in the Warrant Certificates.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement compensation set forth on Exhibit B for the all services rendered by the Warrant Agent. The Company shall also Agent in the execution of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or nature incurred by the Warrant Agent in the performance execution of this Agreement.
(f) The Company shall , and to indemnify the Warrant Agent and hold save it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred in connection with its performance of for this Agreement, Agreement except as a result of the Warrant Agent's ’s gross negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental faith or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damagewillful misconduct.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Unit Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests interest may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent and any shareholderstockholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Unit Warrants or other securities of the Company, Company or become pecuniarily interested in any pecuniary manner in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
Appears in 1 contract
Warrant Agent. The Company hereby appoints Warrant Agent undertakes the duties and obligations imposed by this Agreement (and no implied duties or obligations shall be read into this Agreement against the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, Agent) upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe Warrantholders, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates and the Warrant Share Certificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it of its own selection (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder Warrantholder in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder Warrantholder for any action taken in reliance upon on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument (whether in its original or facsimile form) believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees (i) to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent (including fees and expenses of its counsel) and to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges and disbursements of any kind or and nature incurred by the Warrant Agent in the preparation, delivery, execution, administration and amendment of this Agreement and the exercise and performance of this Agreement.
its duties hereunder and (fii) The Company shall to indemnify the Warrant Agent (and hold any predecessor Warrant Agent) and save it harmless against any and all claims (whether asserted by the Company, a holder or any other person), damages, losses, fines, penalties, settlements, expenses (including taxes other than taxes based on the income of the Warrant Agent), liabilities, including judgments, costs and counsel feesfees and expenses, incurred for any action taken, suffered or omitted to be taken by the Warrant Agent in connection with its performance the execution of this Agreement and the acceptance and administration of this Agreement, except as a result of its gross negligence or willful misconduct (each as finally determined by a court of competent jurisdiction). The costs and expenses incurred in enforcing this right of indemnification shall be paid by the Company. The provisions of this Section 11 shall survive the expiration of the Warrants, the termination of this Agreement and the resignation or removal of the Warrant Agent's negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders registered Warrantholders shall furnish the Warrant Agent with reasonable security and indemnity satisfactory to it for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect limit the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or Warrant Share Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, affiliate, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for any action taken, suffered or omitted to be taken by it in connection with this Agreement except for its own gross negligence or willful misconduct, each as finally determined by a court of competent jurisdiction. Anything to the contrary notwithstanding, in no event shall the Warrant Agent be liable for special, punitive, indirect, consequential or incidental loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(i) The Warrant Agent shall not at any time be under any duty or responsibility to any Warrantholder to make or cause to be made any adjustment of the Exercise Price or number of the Warrant Shares or other securities or property deliverable as provided in this Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto.
(j) Notwithstanding anything in this Agreement to the contrary, neither the Company nor the Warrant Agent shall have any liability to any Warrantholder or other person as a result of its inability to perform any of its obligations under this Agreement by reason of any preliminary or permanent injunction or other order, decree or ruling issued by a court of competent jurisdiction or by a governmental, regulatory or administrative agency or commission, or any statute, rule, regulation or executive order promulgated or enacted by any governmental authority prohibiting or otherwise restraining performance of such obligation; provided that the Company must use its reasonable best efforts to have any such order, decree or ruling lifted or otherwise overturned as soon as possible.
(k) With respect to the exercise by a Warrantholder of any Warrants in accordance with the terms of this Agreement and with respect to any other actions or omissions that may arise as a result of or under this Agreement, to the extent the Warrant Agent has any questions or uncertainties as to what actions it should take with respect thereto, the Warrant Agent may seek written direction from the Company as to what course of action the Warrant Agent should take and the Warrant Agent shall be fully protected and incur no liability in refraining from taking any action thereunder unless and until the Warrant Agent has received such written direction from the Company. Any application by the Warrant Agent for such written instructions from the Company may, at the option of the Warrant Agent, set forth in writing any action proposed to be taken or omitted by the Warrant Agent under this Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Warrant Agent shall not be liable for any action taken by, or omission of, the Warrant Agent in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any officer of the Company actually receives such application, unless any such officer shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Warrant Agent shall have received written instructions in response to such application specifying the action to be taken or omitted.
(l) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured to it.
(m) Whenever in the performance of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate signed by any one of the President, a Vice President, the Treasurer or the Secretary of the Company and delivered to the Warrant Agent; and such certificate shall be full authorization and protection to the Warrant Agent for any action taken or suffered by it under the provisions of this Agreement in reliance upon such certificate.
(n) The Warrant Agent is hereby authorized and directed to accept instructions with respect to the performance of its duties hereunder from any one of the President, a Vice President, the Secretary or the Treasurer of the Company, and to apply to such officers for advice or instructions in connection with its duties, and such instructions shall be full authorization and protection to the Warrant Agent, and the Warrant Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with instructions of any such officer.
(o) The Warrant Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys or agents, and the Warrant Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorneys or agents or for any loss to the Company resulting from any such act, default, neglect or misconduct, absent gross negligence or willful misconduct (each as finally determined by a court of competent jurisdiction) in the selection and continued employment thereof.
Appears in 1 contract
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, duties and the Warrant Agent hereby accepts such appointment, obligations imposed by this Agreement upon the following terms and conditions conditions, by all of which Parent and the Company and every Warrant Holderholders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of Parent and the Company. The Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same, except such statements as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company Parent to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by Parent.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), Parent) and the Warrant Agent shall incur no liability or responsibility to the Company Parent or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the written opinion or the written advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company Parent or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order, certificate certificate, opinion, direction or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company Parent agrees to pay to the Warrant Agent the amount(s) described reasonable compensation, as agreed in Schedule A writing from time to this Agreement time, for the all services rendered by the Warrant Agent. The Company shall also Agent in connection with this Agreement, to reimburse the Warrant Agent for all reasonable expenses, taxes and governmental charges and all other charges of any kind or and nature reasonably incurred by the Warrant Agent in the performance connection with this Agreement (including, without limitation, reasonable fees and expenses of this Agreement.
(fcounsel) The Company shall and to indemnify the Warrant Agent Agent, its officers, directors, employees and hold agents and save it harmless against any and all losses, liabilities, including damages and expenses of any nature whatsoever, including, without limitation, judgments, costs and counsel feesfees and actual expenses, incurred for any action taken or omitted by the Warrant Agent or arising out of or in connection with this Agreement and the exercise by the Warrant Agent of its rights hereunder and the performance by the Warrant Agent of this Agreement, any of its obligations hereunder except as a result of the Warrant Agent's gross negligence or bad faithwillful misconduct, which finding of liability shall have been determined by a court of competent jurisdiction. The provisions of this Section 15 shall survive the resignation or removal of the Warrant Agent and the termination of this Agreement. In no case event shall the Warrant Agent be liable for any indirect, special, indirect, incidental punitive or consequential loss or damage of any kind whatsoever, including, but not limited to, lost profits, even if the Warrant Agent has been advised of the likelihood of such loss or damagedamage and regardless of the form of action. In no event shall the Warrant Agent be liable for any failure or delay in the performance of its obligations hereunder because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, embargo, government action, including any laws, ordinances, regulations, governmental action or the like which delay, restrict or prohibit the providing of the services contemplated by this Agreement.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company Parent or one or more Holders of Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity reasonably satisfactory to the Warrant Agent for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Parent or become pecuniarily interested in any transaction in which the Company Parent may be interested, or contract with or lend money to the Company, Parent or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company Parent or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for Parent, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own willful misconduct, negligence or bad faith.
(i) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of any Warrant Certificate to make or cause to be made any adjustment of the Exercise Price or number of the Warrant Shares or other securities or property deliverable as provided in this Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and non-assessable, and makes no representation with respect thereto.
(j) The Warrant Agent is hereby authorized and directed to accept instructions with respect to the performance of its duties hereunder from the Chairman of the Board, the President, a Vice President, the Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer of Parent, and to apply to such officers for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions of any such officer.
(k) The Warrant Agent shall not have any duty to calculate or determine any adjustments with respect either to the Exercise Price or the kind and amount of shares or other securities or any property receivable by holders of Warrant Certificates upon the exercise or tender of Warrants required from time to time, and the Warrant Agent shall have no duty or responsibility in determining the accuracy or correctness of such calculations.
(l) Parent will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further acts, instruments and assurances as may be required by the Warrant Agent in order to enable it to carry out or perform its duties under this Agreement.
(m) The Warrant Agent shall account promptly to Parent with respect to Warrants exercised and shall concurrently pay to Parent all moneys received by the Warrant Agent from the exercise of Warrants.
Appears in 1 contract
Sources: Warrant Agreement (Ziff Davis Intermediate Holdings Inc)
Warrant Agent. (a) The Company hereby appoints the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, upon the following terms and conditions by all of which the Company and every Warrant Holder, by acceptance of a Warrant, shall be bound:
(a) Statements contained in this Agreement and in the Warrant Certificates shall be taken as statements of the Company. The Warrant Agent assumes responsibility hereunder only for the correctness of any statement which describes agree that the Warrant Agent and/or for action taken or to be taken by will serve as an agent of the Warrant AgentCompany as set forth in this Agreement.
(b) The Warrant Agent shall not by any act hereunder be deemed to make any representation as to validity or authorization of the Warrants or the Warrant Certificates (except as to its countersignature thereon) or of any securities or other property delivered upon exercise of any Warrant, or as to the number or kind or amount of securities or other property deliverable upon exercise of any Warrant or the correctness of the representations of the Company made in such certificates that the Warrant Agent receives.
(c) The Warrant Agent shall not have any duty to calculate or determine any required adjustments with respect to the Exercise Price or the kind and amount of securities or other property receivable by Holders upon the exercise of Warrants, nor to determine the accuracy or correctness of any such calculation.
(d) The Warrant Agent shall not (i) be liable for any recital or statement of fact contained herein or in the Warrant Certificates or for any action taken, suffered or omitted by it in good faith in the belief that any Warrant Certificate or any other document or any signature is genuine or properly authorized, (ii) be responsible for any failure of by the Company to comply with any of the Company's covenants its obligations contained in this Agreement or in the Warrant Certificates, (iii) be liable for any act or omission in connection with this Agreement except for its own gross negligence or willful misconduct or (iv) have any responsibility to determine whether a transfer of a Warrant complies with applicable securities laws.
(ce) The Warrant Agent is hereby authorized to accept instructions with respect to the performance of its duties hereunder solely on behalf of the Company from the Chief Executive Officer, the President, the Chief Financial Officer, any Senior Vice President, or the Secretary or any Assistant Secretary of the Company and to apply to any such officer for written instructions (which will then be reasonably promptly given) and the Warrant Agent shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with the instructions of any such officer, except for its own gross negligence or willful misconduct, but in its discretion the Warrant Agent may in lieu thereof accept other evidence of such or may require such further or additional evidence as it may deem reasonable.
(f) The Warrant Agent may exercise any of the rights and powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys, agents or employees, provided reasonable care has been exercised in the selection and in the continued employment of any persons. The Warrant Agent shall not be under any obligation or duty to institute, appear in or defend any action, suit or legal proceeding in respect hereof, unless first indemnified to its satisfaction. The Warrant Agent shall promptly notify the Company in writing of any claim made or action, suit or proceeding instituted against or arising out of or in connection with this Agreement.
(g) The Company will take such action as may reasonably be required by the Warrant Agent in order to enable it to carry out or perform its duties under this Agreement.
(h) The Warrant Agent shall act solely as agent of the Company hereunder. The Warrant Agent shall only be liable for the failure to perform such duties as are specifically set forth herein.
(i) The Warrant Agent may, at its own expense, consult at any time with legal counsel satisfactory to it (who may be legal counsel for the Company), and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder in respect of for any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(ej) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement compensation for the all services rendered by the Warrant Agent. The Agent hereunder as the Company shall also and the Warrant Agent may agree from time to time, and to reimburse the Warrant Agent for all expensesreasonable expenses incurred in connection with the execution and administration of this Agreement (including the reasonable compensation and expenses of its counsel), taxes and governmental charges and all other charges of any kind or nature incurred by further agrees to indemnify the Warrant Agent for, and hold it harmless against, any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on its part, arising out of or in connection with the performance acceptance and administration of this Agreement.
(fk) The Company shall indemnify [Reserved].
(l) No resignation or removal of the Warrant Agent and hold it harmless against any no appointment of a successor warrant agent shall become effective until the acceptance of appointment by the successor warrant agent as provided herein. The Warrant Agent may resign its duties and be discharged from all liabilities, including judgments, costs further duties and counsel fees, incurred in connection with its performance of this Agreement, liability hereunder (except liability arising as a result of the Warrant Agent's negligence ’s own gross negligence, bad faith or bad faithwillful misconduct) after giving 60 days prior written notice to the Company. In no case shall The Company may remove the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(g) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative theretoupon written notice, and any such action, suit or proceeding instituted by the Warrant Agent shall thereupon in like manner be brought discharged from all further duties and liabilities hereunder, except as aforesaid. Upon such resignation or removal, the Company shall appoint in writing a new warrant agent. If the Company fails to do so within a period of 30 days after it has been notified in writing of such resignation by the resigning Warrant Agent or after such removal, then the resigning Warrant Agent or the Holder of any Warrant (if such Holder first submits his, her or its name as Warrant AgentCertificate for inspection by the Company) may apply to any court of competent jurisdiction for the appointment of a new warrant agent, and any recovery provided that, for purposes of judgment this Agreement, the Company shall be for the ratable benefit of the Warrant Holders as their respective rights or interests may appear, subject deemed to the terms set forth in the Warrant Certificates.
(h) The Warrant Agent and any shareholder, director, officer or employee of be the Warrant Agent may buy, sell or deal until a new warrant agent is appointed. After acceptance in any of the Warrants or other securities of the Company, or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee writing of such Warrant Agent. Nothing appointment by the new warrant agent, it shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.as the
Appears in 1 contract
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, duties and the Warrant Agent hereby accepts such appointment, obligations imposed by this Agreement upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe Holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any Holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) Before the Warrant Agent acts or refrains from acting, it may require an officer's certificate or an opinion of counsel, or both. The Warrant Agent shall incur no liability or responsibility to the Company or to any Holder of any Warrant Holder Certificate for any action taken in reliance upon on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent in the execution of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature reasonably incurred by the Warrant Agent in the performance execution of this Agreement.
(f) The Company shall Agreement and to indemnify the Warrant Agent and hold save it harmless against any and all liabilities, including judgments, reasonable costs and counsel fees, incurred for anything done or omitted by the Warrant Agent in the execution of this Agreement or arising out of or in connection with its performance of its obligations or duties under this Agreement, except as a result of to the Warrant Agent's extent such liabilities are attributable to its gross negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Holders of Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own gross negligence or bad faith.
(i) The Warrant Agent shall not at any time be under any duty or responsibility to any Holder of any Warrant Certificate to make or cause to be made any adjustment of the Exercise Price or number of the Warrant Shares or other securities or property deliverable as provided in this Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto.
(j) Each Holder of Warrants, by its acceptance thereof, acknowledges and agrees that the Trustee may also act as Escrow Agent pursuant to the terms of the Escrow Agreement and Trustee pursuant to the terms of the Indenture.
Appears in 1 contract
Sources: Warrant Agreement (Park N View Inc)
Warrant Agent. The Company hereby appoints the Warrant Agent not Required to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, upon the following terms and conditions by all of which the Company and every Warrant Holder, by acceptance of a Warrant, shall be bound:
(a) Statements contained in this Agreement and in the Warrant Certificates shall be taken as statements of the Company. The Warrant Agent assumes responsibility hereunder only for the correctness of any statement which describes the Warrant Agent and/or for action taken or to be taken by the Warrant Agent.
(b) give Security The Warrant Agent shall not be responsible for required to give any failure bond or security in respect of the Company to comply with any execution of the Company's covenants contained duties, obligations and powers of this Indenture or otherwise in respect of these premises . Section 10.06 Protection of Warrant Agent (a) Protection : By way of supplement to the provisions of any law for the time being relating to warrant agents, it is expressly declared and agreed as follows: (i) the Warrant Agent shall not be liable for, or by reason of, any statement of fact or recital in this Agreement Indenture or in the Warrant Certificates.
Certificates (c) The except the representation contained in section 10 . 08 hereof and in the countersignature of the Warrant Agent may consult at any time with counsel satisfactory on the Warrant Certificates) or required to it (who may be counsel for verify the Company)same, but all such statements or recitals are, and shall be deemed to be, made by the Corporation ; ( i i) the Warrant Agent shall incur no liability or responsibility not be bound to the Company or give notice to any Warrant Holder in respect Person or Persons of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided execution hereof; ( i i i ) the Warrant Agent shall have exercised reasonable care not incur any liability or responsibility whatever or be in any way responsible for the selection consequence of any breach on the part of the Corporation of any of the representations, warranties or covenants herein contained or of any acts of Directors, officers, employees, agents or servants of the Corporation ; (i v ) subject to subsection 10 . 08 (a) hereof, the Warrant Agent, in its personal or any other capacity, may buy, lend upon and continued employment deal in securities of such counsel.
the Corporation and generally may contract and enter into financial transactions with the Corporation or any corporation related to the Corporation without being liable to account for any profit made thereby ; ( v ) nothing herein contained shall impose any obligation on the Warrant Agent to see to or to require evidence of the registration or filing (dor renewal thereof) The of this Indenture or any instrument ancillary or supplemental hereto ; and ( v i) the Warrant Agent shall incur no liability or responsibility not be required to take notice of any default hereunder, unless and until notified in writing of such default, which notice shall distinctly specify the default desired to be brought to the Company or to any Warrant Holder for any action taken in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement for the services rendered by the Warrant Agent. The Company shall also reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or nature incurred by the Warrant Agent in the performance of this Agreement.
(f) The Company shall indemnify the Warrant Agent and hold it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred in connection with its performance of this Agreement, except as a result of the Warrant Agent's negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(g) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power attention of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(h) The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Warrants or other securities of the Company, or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant Agent. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.and,
Appears in 1 contract
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, duties and the Warrant Agent hereby accepts such appointment, obligations imposed by this Agreement upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe Holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as otherwise provided by the express terms of this Agreement.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it of its own selection (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any Holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) Before the Warrant Agent acts or refrains from acting, it may require an officer's certificate or an opinion of counsel, or both. The Warrant Agent shall incur no liability or responsibility to the Company or to any Holder of any Warrant Holder Certificate for any action taken in reliance upon on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument (whether in its original or facsimile form) believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described such compensation as shall be agreed upon from time to time in Schedule A to this Agreement writing for the all services rendered by the Warrant Agent. The Company shall also Agent in the execution of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature reasonably incurred by the Warrant Agent in the performance of this Agreement.
(f) The Company shall indemnify the Warrant Agent and hold it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred in connection with its performance of this Agreement, except as a result of the Warrant Agent's negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(g) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(h) The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Warrants or other securities of the Company, or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant Agent. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.Warrant
Appears in 1 contract
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, duties and the Warrant Agent hereby accepts such appointment, obligations imposed by this Agreement upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe Holders, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The , and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates or Warrant Shares or payment or refund of the Exercise Price except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant Certificates.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of to any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(ec) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent in the execution of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature reasonably incurred by the Warrant Agent in the performance execution of this Agreement.
(f) The Company shall Agreement and to indemnify the Warrant Agent and hold save it harmless against any and all liabilities, including judgments, reasonable costs and counsel fees, incurred for anything done or omitted by the Warrant Agent in connection with its performance the execution of this Agreement, Agreement except as a result of the Warrant Agent's negligence its negligence, bad faith or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damagewillful misconduct.
(gd) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnitysecurity. All rights of action under this 731147.6 16 Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders Holders, as their the respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(he) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(f) The Warrant Agent shall not at any time be under any duty or responsibility to any Holder or the Company to make or cause to be made any adjustment of the Exercise Price or number of the Warrant Shares or other securities or property deliverable as provided in this Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto.
Appears in 1 contract
Warrant Agent. (a) The Lenders and the Company hereby appoints agree that the Company shall serve as warrant agent under this agreement (the "Warrant Agent Agent"). Upon 30 days' notice to act as the agent Holders of the CompanyWarrants, and the Warrant Agent hereby accepts such appointment, upon the following terms and conditions by all of which the Company and every the Lenders may appoint a new Warrant HolderAgent. Such new Warrant Agent shall be a corporation doing business under the laws of the United States or any state thereof, in good standing and having a combined capital and surplus of not less than $50,000,000. The combined capital and surplus of any such new Warrant Agent shall be deemed to be the combined capital and surplus as set forth in the most recent annual report of its condition published by acceptance such Warrant Agent prior to its appointment, provided that such reports are published at least annually pursuant to law or to the requirements of a Warrantfederal or state supervising or examining authority. After acceptance in writing of such appointment by the new Warrant Agent, it shall be bound:
(a) Statements contained in this Agreement vested with the same powers, rights, duties and in the Warrant Certificates shall be taken responsibilities as statements of the Company. The Warrant Agent assumes responsibility hereunder only for the correctness of any statement which describes the Warrant Agent and/or for action taken or to be taken by if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company and shall be legally and validly executed and delivered by the Company.
(b) The Warrant Agent shall not be responsible for any failure of Any corporation into which the Company to comply with or any of the Company's covenants contained in this Agreement or in the Warrant Certificates.
(c) The new Warrant Agent may consult at be merged or any time with counsel satisfactory corporation resulting from any consolidation to it (who may be counsel for the Company), and the Warrant Agent shall incur no liability or responsibility to which the Company or to any Warrant Holder in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement for the services rendered by the Warrant Agent. The Company shall also reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or nature incurred by the Warrant Agent in the performance of this Agreement.
(f) The Company shall indemnify the Warrant Agent and hold it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred in connection with its performance of this Agreement, except as a result of the Warrant Agent's negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(g) The new Warrant Agent shall be under no obligation a party or any corporation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(h) The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Warrants or other securities of the Company, or become pecuniarily interested in any transaction in which the Company may transfers substantially all of its corporate trust or shareholders series business shall be interested, or contract with or lend money to the Company, or otherwise act as fully and freely as though it were not a successor Warrant Agent under this Agreement without any further act, provided that such corporation (i) would be eligible for appointment as successor to the Warrant Agent under the provisions of this Section 16 or (ii) is a shareholder, director, officer or employee wholly owned subsidiary of such the Warrant Agent. Nothing herein Any such successor Warrant Agent shall preclude promptly cause notice of its succession as Warrant Agent to be mailed (by first class mail, postage prepaid) to each Holder at such Holder's last address as shown on the register maintained by the Warrant Agent from acting in any other capacity for the Company or for any other legal entitypursuant to this Agreement.
Appears in 1 contract
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, duties and the Warrant Agent hereby accepts such appointment, obligations imposed by this Agreement upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as herein otherwise specifically provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel. The Warrant Agent shall not be liable for any error of judgment made in good faith by any officer within its corporate trust department or a person performing similar functions, provided unless it is proved that the Warrant Agent was grossly negligent in ascertaining the pertinent facts. The Warrant Agent shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a written direction received by it pursuant to this Agreement or which it reasonably believes to be authorized or within its rights or powers under this Agreement. The Warrant Agent may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care. The duties of the Warrant Agent shall have exercised reasonable care be determined solely by the express provisions of this Agreement and the Warrant Agent need perform only those duties as are specifically set forth in this Agreement and no covenants or obligations shall be implied in or read into this Agreement against the selection and continued employment Warrant Agent. The permissive right of such counselthe Warrant Agent to take any action under this Agreement shall not be construed as a duty to so act.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken or not taken in reliance upon on any Warrant Certificate, notice, resolution, waiver, statement, instrument, opinion, report, request, direction, consent, order, certificate certificate, or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties. The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any such Warrant Certificate, certificate of shares or other evidence of indebtedness, notice, resolution, waiver, statement, instrument, opinion, report, request, direction, consent, order, certificate or other paper or document.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent in the execution of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the performance execution of this Agreement.
Agreement (f) including reasonable fees and expenses of counsel). The Company shall indemnify the Warrant Agent and hold it harmless against any and all liabilitieslosses, including judgments, costs and counsel fees, liabilities or expenses incurred by it arising out of or in connection with the acceptance or administration of its duties under this Warrant Agreement, including the costs and expenses of enforcing this Agreement against the Company and defending itself against any claim (whether asserted by the Company or any holder or any other person) or liability in connection with the exercise or performance of this Agreementany of its powers or duties hereunder, except as a result of to the Warrant Agent's extent any such loss, liability or expense may be attributable to its gross negligence or bad faith. In no case The Warrant Agent shall notify the Company promptly of any claim for which it may seek indemnity. Failure by the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage to so notify the Company shall not relieve the Company of any kind whatsoever, even if its obligations hereunder. The Company shall defend the claim and the Warrant Agent has been advised shall cooperate in the defense; PROVIDED that any settlement of a claim shall be approved in writing by the likelihood Warrant Agent, which approval shall not be unreasonably withheld, conditional or delayed. The Warrant Agent may have separate counsel and the Company shall pay the reasonable fees and expenses of such loss counsel. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld, conditioned or damagedelayed. The rights, privileges, protections, immunities and benefits given to the Warrant Agent, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Warrant Agent in each of its capacities hereunder, including the Warrant Agent's officers, directors, agents and employees, and each agent, custodian and other person employed to act hereunder.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders registered holders of Warrants shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own gross negligence or bad faith.
(i) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of any Warrant Certificate to make or cause to be made any adjustment of the Exercise Price or number of the Warrant Shares or other securities or property deliverable as provided in this Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent makes no representation as to, and shall not be accountable with respect to, the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto.
(j) The Warrant Agent shall not be required to risk or expend its own funds or otherwise incur any liability (financial or otherwise) on the performance of its obligations and duties hereunder. The Warrant Agent shall not be required to give any bond or surety in respect of the performance or exercise of its powers or duties hereunder.
(k) The obligations of the Company under this Section 13 shall survive the exercise and the expiration of the Warrant Certificates or the resignation and removal of the Warrant Agent.
(l) The Warrant Agent shall not be under any liability for interest on, and shall not be required to invest, any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Warrant Certificates. Money and assets held by the Warrant Agent need not be segregated from other funds or assets held by the Warrant Agent except to the extent required by law.
(m) No Warrant Agent under this Agreement shall be personally liable for any action or omission of any predecessor or successor Warrant Agent.
(n) As a condition to taking any action requested by the Company under this Agreement, the Warrant Agent may request an Opinion of Counsel and a certificate of an Officer of the Company to the effect that the requested action complies with the applicable provisions of this Agreement.
Appears in 1 contract
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, duties and the Warrant Agent hereby accepts such appointment, obligations imposed by this Agreement upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The Company and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent in the execution of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the performance execution of this Agreement.
(f) The Company shall Agreement and to indemnify the Warrant Agent and hold save it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred for anything done or omitted by the Warrant Agent in connection with its performance the execution of this Agreement, Agreement except as a result of the Warrant Agent's its negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered holders of Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceedingincurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent it, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own negligence or bad faith.
(i) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of any Warrant Certificate to make or cause to be made any adjustment of the Exercise Price or number of the Warrant Shares or other securities or property deliverable as provided in this Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto.
Appears in 1 contract
Warrant Agent. (a) The Company hereby appoints the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, upon the following terms and conditions by all of which the Company and every Warrant Holder, by acceptance of a Warrant, shall be bound:
(a) Statements contained in this Agreement and in the Warrant Certificates shall be taken as statements of the Company. The Warrant Agent assumes responsibility hereunder only for the correctness of any statement which describes agree that the Warrant Agent and/or for action taken or to be taken by will serve as an agent of the Warrant AgentCompany as set forth in this Agreement.
(b) The Warrant Agent shall not by any act hereunder be deemed to make any representation as to validity or authorization of the Warrants or the Warrant Certificates (except as to its countersignature thereon) or of any securities or other property delivered upon exercise of any Warrant, or as to the number or kind or amount of securities or other property deliverable upon exercise of any Warrant or the correctness of the representations of the Company made in such certificates that the Warrant Agent receives.
(c) The Warrant Agent shall not have any duty to calculate or determine any required adjustments with respect to the Exercise Price or the kind and amount of securities or other property receivable by Holders upon the exercise of Warrants, nor to determine the accuracy or correctness of any such calculation.
(d) The Warrant Agent shall not (i) be liable for any recital or statement of fact contained herein or in the Warrant Certificates or for any action taken, suffered or omitted by it in good faith in the belief that any Warrant Certificate or any other document or any signature is genuine or properly authorized, (ii) be responsible for any failure of by the Company to comply with any of the Company's covenants its obligations contained in this Agreement or in the Warrant Certificates, (iii) be liable for any act or omission in connection with this Agreement except for its own gross negligence or willful misconduct or (iv) have any responsibility to determine whether a transfer of a Warrant complies with applicable securities laws.
(ce) The Warrant Agent is hereby authorized to accept instructions with respect to the performance of its duties hereunder from the Chief Executive Officer, the President, the Chief Financial Officer, any Vice President, the Treasurer, or the Secretary or any Assistant Secretary of the Company and to apply to any such officer for written instructions (which will then be reasonably promptly given) and the Warrant Agent shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with the instructions of any such officer, except for its own gross negligence or willful misconduct, but in its discretion the Warrant Agent may in lieu thereof accept other evidence of such or may require such further or additional evidence as it may deem reasonable.
(f) The Warrant Agent may exercise any of the rights and powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys, agents or employees, provided reasonable care has been exercised in the selection and in the continued employment of any persons. The Warrant Agent shall not be under any obligation or duty to institute, appear in or defend any action, suit or legal proceeding in respect hereof, unless first indemnified to its satisfaction. The Warrant Agent shall promptly notify the Company in writing of any claim made or action, suit or proceeding instituted against or arising out of or in connection with this Agreement, however, failure by the Warrant Agent to provide such notice shall not relieve the Company of any obligation hereunder if no prejudice occurs.
(g) The Company will take such action as may reasonably be required by the Warrant Agent in order to enable it to carry out or perform its duties under this Agreement.
(h) The Warrant Agent shall act solely as agent of the Company hereunder. The Warrant Agent shall only be liable for the failure to perform such duties as are specifically set forth herein.
(i) The Warrant Agent may consult at any time with legal counsel satisfactory to it (who may be legal counsel for the Company), and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder in respect of for any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(ej) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement compensation for the all services rendered by the Warrant Agent. The Agent hereunder as the Company shall also and the Warrant Agent may agree from time to time, and to reimburse the Warrant Agent for all expensesreasonable expenses incurred in connection with the execution and administration of this Agreement (including the reasonable compensation and expenses of its counsel), taxes and governmental charges and all other charges of any kind or nature incurred by further agrees to indemnify the Warrant Agent for, and hold it harmless against, any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on its part, arising out of or in connection with the performance acceptance and administration of this Agreement.
(f) The Company shall indemnify the Warrant Agent and hold it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred in connection with its performance of this Agreement, except as a result of the Warrant Agent's negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(gk) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(h) The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent Agent, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or its Affiliates or become pecuniarily interested in any transaction transactions in which the Company or its Affiliates may be interested, or contract with or lend money to the Company, Company or its Affiliates or otherwise act as fully and freely as though it were not the Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entityPerson.
(l) No resignation or removal of the Warrant Agent and no appointment of a successor warrant agent shall become effective until the acceptance of appointment by the successor warrant agent as provided herein. The Warrant Agent may resign its duties and be discharged from all further duties and liability hereunder (except liability arising as a result of the Warrant Agent’s own gross negligence or willful misconduct) after giving written notice to the Company. The Company may remove the Warrant Agent upon written notice, and the Warrant Agent shall thereupon in like manner be discharged from all further duties and liabilities hereunder, except as aforesaid. The Warrant Agent shall, at the Company’s expense, cause to be mailed (by first class mail, postage prepaid) to each Holder of a Warrant at such Holder’s last address as shown on the register of the Company maintained by the Warrant Agent a copy of said notice of resignation or notice of removal, as the case may be. Upon such resignation or removal, the Company shall appoint in writing a new warrant agent. If the Company fails to do so within a period of 30 days after it has been notified in writing of such resignation by the resigning Warrant Agent or after such removal, then the resigning Warrant Agent or the Holder of any Warrant may apply to any court of competent jurisdiction for the appointment of a new warrant agent. After acceptance in writing of such appointment by the new warrant agent, it shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent. Not later than the effective date of any such appointment, the Company shall give notice thereof to the resigning or removed Warrant Agent. Failure to give any notice provided for in this Section 14(l), however, or any defect therein, shall not affect the legality or validity of the resignation of the Warrant Agent or the appointment of a new warrant agent, as the case may be.
(m) Any corporation into which the Warrant Agent or any new warrant agent may be merged or converted or any corporation resulting from any consolidation to which the Warrant Agent or any new warrant agent shall be a party or any corporation to which the Warrant Agent transfers substantially all of its corporate trust business shall be a successor Warrant Agent under this Agreement without any further act, provided that such corporation (i) would be eligible for appointment as successor to the Warrant Agent under the provisions of Section 14(l) or (ii) is a wholly owned subsidiary of the Warrant Agent. Any such successor Warrant Agent shall promptly cause notice of its succession as Warrant Agent to be mailed (by first class mail, postage prepaid) to each Holder in accordance with Section 13.
Appears in 1 contract
Sources: Warrant Agreement (Gevo, Inc.)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, duties ------------- and the Warrant Agent hereby accepts such appointment, obligations imposed by this Agreement upon the following terms and conditions by conditions, all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The , and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. Except as herein otherwise provided, the Warrant AgentAgent assumes no responsibility with respect to the execution, delivery or distribution of the Warrant Certificates.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company nor shall it at any time be under any duty or responsibility to any holder of a Warrant to make or cause to be made any adjustment in the Exercise Price or in the number of Shares issuable (except as instructed by the Company) upon exercise of any Warrant, or to determine whether any facts exist which may require any such adjustments, or with respect to the nature or extent of or method employed in making any such adjustments when made.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder holder of any warrant Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the tho Warrant Agent. The Company shall also Agent under this Agreement, to reimburse the Warrant Agent upon demand for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in the performance of its duties under this Agreement.
(f) The Company shall Agreement and to indemnify the Warrant Agent and hold save it harmless against any and all liabilitieslosses, liabilities and expenses, including judgments, costs and reasonable counsel fees, incurred for anything done or omitted by such Warrant Agent arising out of or in connection with its performance of this Agreement, Agreement except as a result of the Warrant Agent's its gross negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more holders of Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity for any costs and or expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnityincurred. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the tho Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of or judgment shall be for the ratable benefit of the Warrant Holders holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee thereof, or of the Warrant Agent any affiliated corporation thereof, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not a Warrant Agent under this Agreement Agreement, or a shareholderstockholder, director, officer or employee of such the Warrant AgentAgent or one of its affiliated corporations, as the case may be. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own gross negligence or bad faith.
(i) The Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement.
(j) The Warrant Agent shall be under no responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except the due execution hereof by the Warrant Agent) or in respect of the validity or execution of any Warrant Certificate; nor shall the Warrant Agent by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of the Shares to be issued pursuant to this Agreement or any Warrant Certificate or as to whether the Shares will when issued by validly issued, fully paid and nonassessable or as to the Exercise Price or the number of Shares issuable upon exercise of any Warrant.
(k) The Warrant Agent is hereby authorized and directed to accept instructions with respect to the performance of its duties hereunder from the Chairman of the Board, the President, the Treasurer or any Vice President, the Secretary or any Assistant Secretary of the Company, and to apply to such officers for advice and instructions in connection with its duties, and shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions of any such officer or in good faith reliance upon any statement signed by any one of such officers of the Company with respect to any fact or matter (unless other evidence in respect thereof is herein specifically prescribed) which may be deemed to be conclusively proved and established by such signed statement.
(l) The Warrant Agent may enter into servicing contracts or subagency arrangements with third parties for the performance of any of the administrative functions to be performed by the Warrant Agent hereunder.
Appears in 1 contract
Warrant Agent. (a) The Company hereby appoints the Warrant Agent to act as undertakes only the agent of the Company, duties and obligations expressly imposed by this Warrant Agreement and the Global Warrant Agent hereby accepts such appointmentCertificates, in each case upon the following terms and conditions set forth below, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(ab) Statements The statements contained in this Agreement herein and in the Global Warrant Certificates shall be taken as statements of the Company. The Warrant Agent assumes no responsibility hereunder only for the accuracy or correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Global Warrant Certificates except as herein otherwise provided.
(c) Whenever in the performance of its duties under this Warrant Agreement the Warrant Agent deems it necessary or desirable that any fact or matter be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, the Warrant Agent is hereby authorized and directed to accept instructions with respect to the performance of its duties hereunder from an Appropriate Officer and to apply to the Appropriate Officers for advice or instructions in connection with its duties, and such instructions shall be full authorization and protection to the Warrant Agent and, absent gross negligence, bad faith or willful misconduct (each as determined by a final, non-appealable judgment of a court of competent jurisdiction), the Warrant Agent shall not be liable for any action taken, suffered to be taken, or omitted to be taken by it in accordance with the instructions of any such Appropriate Officer or in reliance upon any statement signed by any one of such Appropriate Officers with respect to any fact or matter which may be deemed to be conclusively proved and established by such signed statement. In the event the Warrant Agent reasonably believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, or is uncertain of any action to take hereunder, the Warrant Agent, may, following prior written notice to the Company, in its discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company or any other person or entity for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the reasonable satisfaction of the Warrant Agent.
(bd) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Warrant Agreement (including, without limitation, any adjustment of the Exercise Price pursuant to Section 13 hereof, the authorization or reservation of shares of Common Stock pursuant to Section 12 hereof, the due execution and delivery by the Company of this Warrant Agreement or any Global Warrant Certificate) or in the Global Warrant CertificatesCertificates to be complied with by the Company.
(ce) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be outside counsel for the CompanyCompany or in-house counsel of the Warrant Agent), and the advice and opinion of such counsel will be full and complete authorization and protection to the Warrant Agent as to, and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder in respect of of, any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care absent gross negligence, bad faith or willful misconduct (each as determined by a final, non-appealable judgment of a court of competent jurisdiction) in the selection and continued employment retention of such counsel and the reliance on such counsel’s advice or opinion.
(df) The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder for any action taken in reliance upon on any Global Warrant Certificate, Book-Entry Statement, certificate representing shares of Common Stock, notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties. The Warrant Agent shall not be bound by any notice or demand, or any waiver, modification, termination or revision of this Warrant Agreement or any of the terms hereof, unless evidenced by a writing between and signed by, the Company and the Warrant Agent. The Warrant Agent shall not be required to take instructions or directions except those given in accordance with this Warrant Agreement.
(eg) The Warrant Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys, accountants, agents or other experts, and the Warrant Agent will not be answerable or accountable for any act, default, neglect or unintentional misconduct of any such attorneys or agents or for any loss to the Company or the holders of the Warrants resulting from any such act, default, neglect or unintentional misconduct, absent gross negligence, willful misconduct or bad faith (as each is determined by a final non-appealable judgment of a court of competent jurisdiction) in the selection and continued employment thereof. Notwithstanding anything contained herein to the contrary, the Warrant Agent’s aggregate liability during any term of this Warrant Agreement with respect to, arising from, or arising in connection with this Warrant Agreement, or from all Services provided or omitted to be provided under this Warrant Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Company to Warrant Agent as fees and charges, but not including reimbursable expenses.
(h) The Warrant Agent will not be under any duty or responsibility to insure compliance with any applicable federal or state securities laws in connection with the issuance, transfer or exchange of Global Warrant Certificates.
(i) The Warrant Agent shall not incur any liability for not performing any act, duty, obligation or responsibility by reason of any occurrence beyond the control of the Warrant Agent (including without limitation any act or provision of any present or future law or regulation or governmental authority, any act of God, war, civil disorder or failure of any means of communication).
(j) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement reasonable compensation for the all services rendered by the Warrant Agent. The Company shall also Agent under this Warrant Agreement, to reimburse the Warrant Agent upon demand for all expensesreasonable out-of-pocket expenses (including counsel fees and other disbursements), taxes (including withholding taxes) and governmental charges and all other charges of any kind or and nature actually incurred by the Warrant Agent in the preparation, administration, execution, delivery and amendment of this Warrant Agreement and performance of its duties and responsibilities under this Agreement.
(f) The Company shall Warrant Agreement and to indemnify the Warrant Agent and hold save it harmless against any and all liabilitieslosses, liabilities and expenses, including judgments, damages, fines, penalties, claims, demands, costs and counsel feesfees and expenses, incurred for anything done or omitted by the Warrant Agent in the arising out of or in connection with its performance of this Agreement, Warrant Agreement except as a result of the Warrant Agent's negligence its gross negligence, bad faith or bad faithwillful misconduct (each as determined by a final, non-appealable judgment of a court of competent jurisdiction). In no case shall The costs and expenses incurred by the Warrant Agent in enforcing the right to indemnification shall be liable for specialpaid by the Company except to the extent that it is determined by a final, indirect, incidental or consequential loss or damage non-appealable judgment of any kind whatsoever, even if a court of competent jurisdiction that the Warrant Agent has been advised of is not entitled to indemnification due to its gross negligence, bad faith or willful misconduct. Notwithstanding the likelihood of such loss or damageforegoing, the Company shall not be responsible for any settlement made without its written consent.
(gk) The Warrant Agent Agent, shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense or liability unless the Company or one or more Warrant Holders registered holders of Warrants shall furnish the Warrant Agent with reasonable security and indemnity commercially reasonably satisfactory to the Warrant Agent for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnityincurred. All rights of action under this Warrant Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates Warrants or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, Agent and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hl) The Except as otherwise prohibited by applicable law, the Warrant Agent Agent, and any shareholdermember, stockholder, affiliate, director, officer or employee of the Warrant Agent Agent, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement Warrant Agreement, or a shareholdermember, stockholder, affiliate, director, officer or employee of such the Warrant Agent, as the case may be. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(m) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the express provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Warrant Agreement, except for its own gross negligence, bad faith or willful misconduct (each as determined by a final, non-appealable judgment of a court of competent jurisdiction), provided that notwithstanding anything in this Warrant Agreement to the contrary, in no event shall the Warrant Agent be liable for punitive, special, indirect, incidental or consequential loss or damage of any kind whatsoever (including, without limitation, lost profits).
(n) The Warrant Agent shall not at any time be under any duty or responsibility to any holder of any Warrant to make or cause to be made any adjustment of the Exercise Price or number of the shares of Common Stock or other securities or property deliverable as provided in this Warrant Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any shares of Common Stock or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such shares of Common Stock or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto.
(o) The Warrant Agent shall have no duties, responsibilities or obligations as the Warrant Agent except those which are expressly set forth herein, and in any modification or amendment hereof to which the Warrant Agent has consented in writing, and no duties, responsibilities or obligations shall be implied or inferred. Without limiting the foregoing, unless otherwise expressly provided in this Warrant Agreement, the Warrant Agent shall not be subject to, nor be required to comply with, or determine if any Person has complied with, the Warrants or any other agreement between or among the parties hereto, even though reference thereto may be made in this Warrant Agreement, or to comply with any notice, instruction, direction, request or other communication, paper or document other than as expressly set forth in this Warrant Agreement.
(p) All rights and obligations contained in this Section 21 and Section 23 hereof shall survive the termination of this Warrant Agreement and the resignation or removal of the Warrant Agent.
(q) Any limitation on liability, duty to investigate or any other similar duty or obligation provided herein with respect to the Warrant Agent shall not be applicable to the Company if it is acting as Warrant Agent.
(r) The Warrant Agent shall not be under any responsibility in respect of the validity of this Warrant Agreement or the execution and delivery hereof (except the due and validly authorized execution hereof by the Warrant Agent) or in respect of the validity or execution of any Global Warrant Certificate (except its due and validly authorized countersignature thereof), nor shall the Warrant Agent by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of the Shares to be issued pursuant to this Warrant Agreement or any Warrant or as to whether the Shares will when issued be validly issued, fully paid and nonassessable or as to the Exercise Price or the number of Shares issuable upon exercise of any warrant.
(s) No provision of this Warrant Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights if it reasonably believes that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured to it.
(t) If the Warrant Agent shall receive any notice or demand (other than notice of or demand for exercise of Warrants) addressed to the Company by any holder pursuant to the provisions of the Warrants, the Warrant Agent shall promptly forward such notice or demand to the Company.
Appears in 1 contract
Sources: Warrant Agreement (SemGroup Corp)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, duties and the Warrant Agent hereby accepts such appointment, ------------- obligations expressly imposed by this Agreement upon the following terms and conditions conditions, and no implied duties or obligations shall be read into this Agreement against the Warrant Agent, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The , and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it . The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it of its own selection (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent may conclusively rely upon and shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument (whether in its original or facsimile form) believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent such compensation as shall be agreed between the amount(s) described in Schedule A to this Agreement Company and the Warrant Agent for the all services rendered by the Warrant Agent. The Company shall also Agent in the execution of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in connection with the performance execution and administration of its duties under this Agreement.
(f) The Company shall Agreement and to fully indemnify the Warrant Agent and hold save it harmless against any and all liabilities, claims, damages, losses and expenses including judgments, costs and reasonable counsel feesfees and expenses, incurred for anything done or omitted by the Warrant Agent in connection with the execution and administration of its performance duties under this Agreement except as determined by a court of competent jurisdiction to have been caused by its gross negligence or willful misconduct. The provisions of this Section 19(e) shall survive the termination of this Agreement, except as a result of the Warrant Agent's negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered holders of Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity satisfactory to it for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent thereof, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof and no duties shall be inferred or implied against the Warrant Agent. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own gross negligence or willful misconduct.
(i) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of is rights if there shall be reasonable grounds for believing repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured to it.
Appears in 1 contract
Sources: Warrant Agreement (Tivo Inc)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, duties and the Warrant Agent hereby accepts such appointment, obligations imposed by this Agreement upon the following terms and conditions conditions, by all of which the Company and every Warrant Holderthe holders of Class B Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements .1 The statements contained in this Agreement herein and in the Global Warrant Certificates shall be taken as statements of the Company. The , and the Warrant Agent assumes no responsibility hereunder only for the correctness accuracy of any statement which describes of such statements except such as describe the Warrant Agent and/or for or action taken or to be taken by it. Except as herein otherwise provided, the Warrant AgentAgent assumes no responsibility with respect to the execution, delivery or distribution of the Global Warrant Certificates.
(b) .2 The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Global Warrant CertificatesCertificates to be complied with by the Company nor shall it at any time be under any duty or responsibility to any holder of a Class B Warrant to make or cause to be made any adjustment in any Exercise Price or in the number of shares of Common Stock issuable upon exercise of any Class B Warrant (except as instructed by the Company), or to determine whether any facts exist which may require any such adjustments, or with respect to the nature or extent of or method employed in making any such adjustments when made.
(c) .3 The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Class B Warrant Holder in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) .4 The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Class B Warrant Holder for any action taken in reliance upon on any statement, notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been made, signed, sent or presented by the proper party or parties.
(e) .5 The Company agrees to pay to the Warrant Agent the amount(s) described fees set forth in Schedule A to this Agreement attached hereto for the all services rendered by the Warrant Agent. The Company shall also Agent under this Agreement and to reimburse the Warrant Agent upon demand for all expenses, taxes and governmental charges and all other charges of any kind or nature reasonable expenses incurred by the Warrant Agent in the performance of its duties under this Agreement.
(f) The Company shall Agreement and to indemnify the Warrant Agent and hold save it harmless against any and all liabilitieslosses, liabilities and expenses, including the cost of defending itself against any claims or charges, and including judgments, costs and reasonable counsel feesfees and expenses, incurred for anything done or omitted by the Warrant Agent arising out of or in connection with its performance of this Agreement, Agreement except as a result of the Warrant Agent's negligence its gross negligence, bad faith or bad faithwillful misconduct. In no case The Company shall the Warrant Agent not be liable responsible for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damagesettlement made without its written consent.
(g) .6 The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense or liability unless the Company or one or more Warrant Holders registered holders of Class B Warrants shall furnish the Warrant Agent with reasonable security and indemnity for any costs and or expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnityincurred. All rights of action under this Agreement or under any of the Class B Warrants may be enforced by the Warrant Agent without the possession of any of the Global Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of or judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Class B Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(h) .7 The Warrant Agent Agent, and any shareholderstockholder, affiliate, director, officer or employee of the Warrant Agent thereof, may buy, sell or deal in any of the Class B Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it they were not the Warrant Agent under this Agreement Agreement, or a shareholder, stockholder director, officer or employee of such the Warrant Agent, as the case may be. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entityPerson.
.8 The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own gross negligence, bad faith or willful misconduct.
.9 The Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as any may be reasonably required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement.
.10 The Warrant Agent shall not be under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except the due execution hereof by the Warrant Agent) or in respect of the validity or execution of any Global Warrant Certificate (except its countersignature thereof), nor shall the Warrant Agent by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of the shares of Common Stock to be issued upon exercise of any Class B Warrant or as to whether such shares of Common Stock will when issued be validly issued, fully paid and nonassessable or as to any Exercise Price or the number of shares of Common Stock issuable upon exercise of any Class B Warrant.
.11 The Warrant Agent is hereby authorized and directed to accept instructions with respect to the performance of its duties hereunder from the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Treasurer, the Secretary or an Assistant Secretary of the Company, and to apply to such officers for advice or instructions in connection with its duties, and shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions of any such officer or in good faith reliance upon any statement signed by any one of such officers of the Company with respect to any fact or matter (unless other evidence in respect thereof is herein specifically prescribed) which may be deemed to be conclusively proved and established by such signed statement.
Appears in 1 contract
Sources: Warrant Agreement (Primus Telecommunications Group Inc)
Warrant Agent. The Company hereby appoints the Warrant Agent to act as undertakes the agent of the Company, duties and the Warrant Agent hereby accepts such appointment, obligations expressly imposed by this Agreement upon the following terms and conditions conditions, and no implied duties or obligations shall be read into this Agreement against the Warrant Agent, by all of which the Company and every Warrant Holderthe holders of Warrants, by their acceptance of a Warrantthereof, shall be bound:
(a) Statements The statements contained in this Agreement herein and in the Warrant Certificates shall be taken as statements of the Company. The , and the Warrant Agent assumes no responsibility hereunder only for the correctness of any statement which describes of the same except such as describe the Warrant Agent and/or for or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant AgentCertificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the Company's covenants contained in this Agreement or in the Warrant CertificatesCertificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to it of its own selection (who may be counsel for the Company), ) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent may conclusively rely upon and shall incur no liability or responsibility to the Company or to any holder of any Warrant Holder Certificate for any action taken in reliance upon on any notice, resolution, waiver, consent, order, certificate certificate, or other paper, document or instrument (whether in its original or facsimile form) believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent such compensation as shall be agreed between the amount(s) described in Schedule A to this Agreement Company and the Warrant Agent for the all services rendered by the Warrant Agent. The Company shall also Agent in the execution of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and all other charges of any kind or and nature incurred by the Warrant Agent in connection with the performance execution and administration of its duties under this Agreement.
(f) The Company shall Agreement and to fully indemnify the Warrant Agent and hold save it harmless against any and all liabilities, claims, damages, losses and expenses including judgments, costs and reasonable counsel feesfees and expenses, incurred for anything done or omitted by the Warrant Agent in connection with the execution and administration of its performance duties under this Agreement except as determined by a court of competent jurisdiction to have been caused by its gross negligence or willful misconduct. The provisions of this Section 19(e) shall survive the termination of this Agreement, except as a result of the Warrant Agent's negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage...
(gf) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered holders of Warrant Holders Certificates shall furnish the Warrant Agent with reasonable security and indemnity satisfactory to it for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnityincurred. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders registered holders of the Warrants, as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(hg) The Warrant Agent Agent, and any shareholderstockholder, director, officer or employee of the Warrant Agent thereof, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof and no duties shall be inferred or implied against the Warrant Agent. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own gross negligence or willful misconduct.
(i) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of is rights if there shall be reasonable grounds for believing repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured to it.
Appears in 1 contract
Warrant Agent. (a) The Company hereby appoints the Warrant Agent to act as the agent of the Company, and the Warrant Agent hereby accepts such appointment, upon the following terms and conditions by all of which the Company and every Warrant Holder, by acceptance of a Warrant, shall be bound:
(a) Statements contained in this Agreement and in the Warrant Certificates shall be taken as statements of the Company. The Warrant Agent assumes responsibility hereunder only for the correctness of any statement which describes agree that the Warrant Agent and/or for action taken or to be taken by will serve as an agent of the Warrant AgentCompany as set forth in this Agreement.
(b) The Warrant Agent shall not by any act hereunder be deemed to make any representation as to validity or authorization of the Warrants or the Warrant Certificates (except as to its countersignature thereon) or of any securities or other property delivered upon exercise of any Warrant, or as to the number or kind or amount of securities or other property deliverable upon exercise of any Warrant or the correctness of the representations of the Company made in such certificates that the Warrant Agent receives.
(c) The Warrant Agent shall not have any duty to calculate or determine any required adjustments with respect to the Exercise Price or the kind and amount of securities or other property receivable by Holders upon the exercise of Warrants, nor to determine the accuracy or correctness of any such calculation.
(d) The Warrant Agent shall not (i) be liable for any recital or statement of fact contained herein or in the Warrant Certificates or for any action taken, suffered or omitted by it in good faith in the belief that any Warrant Certificate or any other document or any signature is genuine or properly authorized, (ii) be responsible for any failure of by the Company to comply with any of the Company's covenants its obligations contained in this Agreement or in the Warrant Certificates, (iii) be liable for any act or omission in connection with this Agreement except for its own gross negligence or willful misconduct or (iv) have any responsibility to determine whether a transfer of a Warrant complies with applicable securities laws.
(ce) The Warrant Agent is hereby authorized to accept instructions with respect to the performance of its duties hereunder from the Chief Executive Officer, the President, any Vice President, the Treasurer, or the Secretary or any Assistant Secretary of the Company and to apply to any such officer for written instructions (which will then be promptly given) and the Warrant Agent shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with the instructions of any such officer, except for its own gross negligence or willful misconduct, but in its discretion the Warrant Agent may in lieu thereof accept other evidence of such or may require such further or additional evidence as it may deem reasonable.
(f) The Warrant Agent may exercise any of the rights and powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys, agents or employees, provided reasonable care has been exercised in the selection and in the continued employment of any persons. The Warrant Agent shall not be under any obligation or duty to institute, appear in or defend any action, suit or legal proceeding in respect hereof, unless first indemnified to its satisfaction. The Warrant Agent shall promptly notify the Company in writing of any claim made or action, suit or proceeding instituted against or arising out of or in connection with this Agreement.
(g) The Company will take such action as may reasonably be required by the Warrant Agent in order to enable it to carry out or perform its duties under this Agreement.
(h) The Warrant Agent shall act solely as agent of the Company hereunder. The Warrant Agent shall only be liable for the failure to perform such duties as are specifically set forth herein.
(i) The Warrant Agent may consult at any time with legal counsel satisfactory to it (who may be legal counsel for the Company), and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder in respect of for any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel, provided the Warrant Agent shall have exercised reasonable care in the selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Warrant Holder for any action taken in reliance upon any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(ej) The Company agrees to pay to the Warrant Agent the amount(s) described in Schedule A to this Agreement compensation for the all services rendered by the Warrant Agent. The Agent hereunder as the Company shall also and the Warrant Agent may agree from time to time, and to reimburse the Warrant Agent for all expensesreasonable expenses incurred in connection with the execution and administration of this Agreement (including the reasonable compensation and expenses of its counsel), taxes and governmental charges and all other charges of any kind or nature incurred by further agrees to indemnify the Warrant Agent for, and hold it harmless against, any loss, liability or expense incurred, including attorney’s fees, without gross negligence, bad faith or willful misconduct on its part, arising out of or in connection with the performance acceptance and administration of this Agreement.
(f) The Company shall indemnify the Warrant Agent and hold it harmless against any and all liabilities, including judgments, costs and counsel fees, incurred in connection with its performance of this Agreement, except as a result of the Warrant Agent's negligence or bad faith. In no case shall the Warrant Agent be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever, even if the Warrant Agent has been advised of the likelihood of such loss or damage.
(gk) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Warrant Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred in connection with such action, suit or legal proceeding, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may, in its sole and absolute discretion, consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Warrant Holders as their respective rights or interests may appear, subject to the terms set forth in the Warrant Certificates.
(h) The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent Agent, may buy, sell or deal in any of the Warrants or other securities of the Company, Company or its Affiliates or become pecuniarily interested in any transaction transactions in which the Company or its Affiliates may be interested, or contract with or lend money to the Company, Company or its Affiliates or otherwise act as fully and freely as though it were not the Warrant Agent under this Agreement or a shareholder, director, officer or employee of such Warrant AgentAgreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entityPerson.
(l) No resignation or removal of the Warrant Agent and no appointment of a successor warrant agent shall become effective until the acceptance of appointment by the successor warrant agent as provided herein. The Warrant Agent may resign its duties and be discharged from all further duties and liability hereunder (except liability arising as a result of the Warrant Agent’s own gross negligence or willful misconduct) after giving written notice to the Company. The Company may remove the Warrant Agent upon written notice, and the Warrant Agent shall thereupon in like manner be discharged from all further duties and liabilities hereunder, except as aforesaid. The Warrant Agent shall, at the Company’s expense, cause to be mailed (by first class mail, postage prepaid) to each Holder of a Warrant at such Holder’s last address as shown on the register of the Company maintained by the Warrant Agent a copy of said notice of resignation or notice of removal, as the case may be. Upon such resignation or removal, the Company shall appoint in writing a new warrant agent. If the Company fails to do so within a period of 30 days after it has been notified in writing of such resignation by the resigning Warrant Agent or after such removal, then the resigning Warrant Agent or the Holder of any Warrant may apply to any court of competent jurisdiction for the appointment of a new warrant agent. After acceptance in writing of such appointment by the new warrant agent, it shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent. Not later than the effective date of any such appointment, the Company shall give notice thereof to the resigning or removed Warrant Agent. Failure to give any notice provided for in this Section 18(l), however, or any defect therein, shall not affect the legality or validity of the resignation of the Warrant Agent or the appointment of a new warrant agent, as the case may be.
(m) Any corporation into which the Warrant Agent or any new warrant agent may be merged or any corporation resulting from any consolidation to which the Warrant Agent or any new warrant agent shall be a party or any corporation to which the Warrant Agent transfers substantially all of its corporate trust business shall be a successor Warrant Agent under this Agreement without any further act, provided that such corporation (i) would be eligible for appointment as successor to the Warrant Agent under the provisions of Section 18(l) or (ii) is a wholly owned subsidiary of the Warrant Agent. Any such successor Warrant Agent shall promptly cause notice of its succession as Warrant Agent to be mailed (by first class mail, postage prepaid) to each Holder in accordance with Section 17
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Sources: Warrant Agreement (Superconductor Technologies Inc)