Certain Other Matters. INCREASES IN CAPITALIZATION. So long as any Preferred Shares are outstanding, the Trust shall not, without the affirmative vote or consent of the Holders of at least a majority of the Preferred Shares outstanding at the time, in person or by proxy, either in writing or at a meeting, voting as a separate class: (a) authorize, create or issue any class or series of shares ranking prior to or on a parity with Preferred Shares with respect to the payment of distributions or the distribution of assets upon dissolution, liquidation or winding up of the affairs of the Trust, or authorize, create or issue additional shares of any series of Preferred Shares (except that, notwithstanding the foregoing, but subject to the provisions of paragraph (c) of Section 13 of this Part I, the Board of Trustees, without the vote or consent of the Holders of Preferred Shares, may from time to time authorize and create, and the Trust may from time to time issue additional shares of Preferred Shares, or classes or series of preferred shares ranking on a parity with Preferred Shares with respect to the payment of distributions and the distribution of assets upon dissolution, liquidation or winding up of the affairs of the Trust; PROVIDED, HOWEVER, that if Moody's and Fitch (or other NRSRO) is not then rating the Preferred Shares, the aggregate liquidation preference of all Preferred Shares of the Trust outstanding after any such issuance, exclusive of accumulated and unpaid distributions, may not exceed $___) or (b) amend, alter or repeal the provisions of the Declaration of Trust, or these Bylaws, whether by merger, consolidation or otherwise, so as to affect any preference, right or power of such Preferred Shares or the Holders thereof; PROVIDED, HOWEVER, that (i) none of the actions permitted by the exception to (a) above will be deemed to affect such preferences, rights or powers, (ii) a division or split of a Preferred Share will be deemed to affect such preferences, rights or powers only if the terms of such division adversely affect the Holders of Preferred Shares and (iii) the authorization, creation and issuance of classes or series of shares ranking junior to Preferred Shares with respect to the payment of distributions and the distribution of assets upon dissolution, liquidation or winding up of the affairs of the Trust, will be deemed to affect such preferences, rights or powers only if Moody's or Fitch is then raxxxx Xxeferred Shares and such issuance would, at the tim...
Certain Other Matters. (i) Each Third Point Designee or Replacement shall be entitled to resign from the Board at any time in his or her discretion. For purposes of this Agreement, the “Standstill Period” shall mean the period from the date of this Agreement until the later of (x) 12:01 a.m. on the sixtieth (60th) day prior to the advance notice deadline for making director nominations at the Company’s 2015 Annual Meeting, and (y) thirty days after such time as none of the Third Point Designees (including any Replacements) are members of the Board; provided, however, that with respect to each succeeding annual meeting of Company shareholders after the 2014 Annual Meeting, if Third Point and the Company agree in writing to include the Third Point Designees (or their Replacement) on the Company’s slate of director nominees for any annual meeting of Company shareholders after the 2014 Annual Meeting, the Standstill Period shall continue through and including the date of such applicable annual meeting and if the Third Point Designees are so elected by the shareholders as directors as part of the incumbent Board slate of nominees, then the Standstill Period shall further extend until the later of (x) 12:01 a.m. on the sixtieth (60th) day prior to the advance notice deadline for making director nominations at the annual meeting of Company shareholders subsequent to such re-election of the Third Point Designees to the Board, and (y) thirty days after such time as none of the Third Point Designees (including any Replacements) are members of the Board; provided, further, that if the Third Point Designees are not so elected and do not resign from the Board, the Standstill Period shall continue until thirty days after such time as none of the Third Point Designees (including any Replacements) are members of the Board. Notwithstanding anything to the contrary in this Agreement, during the thirty day period following the resignation of all Third Point Designees, Third Point may take all actions appropriate to prepare and deliver to the Company a notice of director nominations for the upcoming annual meeting, but during such thirty-day period neither Third Point nor the Company shall make any public disclosure that would otherwise be contrary to the terms of this Agreement, except as may be required by law.
(ii) Notwithstanding anything to the contrary in this Section 2(a), the Company agrees that for so long as any of the Third Point Designees (or their Replacements) are on the Board (A) the...
Certain Other Matters. (a) Xx. Xxxx shall be entitled to resign from the Board at any time in his discretion. For purposes of this Agreement, the “Standstill Period” shall mean the period from the date of this Agreement until the latest of (A) the six month anniversary of the Effective Date, (B) sixty days after Xx. Xxxx is no longer serving as a director of the Company, and (C) if Xx. Xxxx is a director at all times until the time nominations are due for the 2016 Annual Meeting, and is nominated and agrees to serve on the Company’s slate of director nominees for the 2016 Annual Meeting, the period from the printing of the proxy statement for that Meeting until the conclusion of that Meeting; provided that in no event shall the Standstill Period extend beyond the date of the 2016 Annual Meeting.
(b) During the Standstill Period, each Osmium Party shall not, directly or indirectly, and each Osmium Party shall cause Xx. Xxxx and each other Osmium Affiliate and Associate not to, directly or indirectly (it being understood and agreed that the following restrictions shall not apply to Xx. Xxxx’x discussions solely among other members of the Board and/or management of the Company):
(i) solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to, or from the holders of, the Voting Securities (as defined below), or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in or assist any person or entity that is not a Party (a “Third Party”) in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange Act) to vote any shares of the Voting Securities (other than such encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter);
(ii) encourage, advise or influence any other person or assist any Third Party in so encouraging, assisting or influencing any person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter);
(iii) form or join in a partnership, limited partnership, syndicate or other group, including a “group” as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities (for the avoidance of do...
Certain Other Matters. (a) If the Closing shall occur, the indemnification provisions of this Article VIII shall be the sole and exclusive remedy for money damages in respect of any inaccuracy or breach of any representation or warranty or any breach of any covenant or agreement made in this Agreement other than in respect of any claim under Article VI or as otherwise agreed in writing by the parties hereto. No party shall be entitled to seek, and to the fullest extent permitted by applicable Law, the parties hereto waive, any rights they might otherwise have to rescind the sale and purchase of the Shares. Without limiting the foregoing, the indemnities provided in this Article VIII shall constitute Purchaser Indemnified Party's exclusive remedy for any Losses arising under Environmental Laws (except with respect to Excluded Liabilities) and the Purchaser Indemnified Parties expressly waive and relinquish, on behalf of themselves, their successors and any assigns, any and all rights, claims or remedies such person may have against Seller under any Environmental Laws (except with respect to Excluded Liabilities), as presently in force or hereafter enacted, promulgated, or amended (including, without limitation, under the Comprehensive Environmental Response Compensation and Liability Act, or any similar state or local law) or at common law.
(b) Upon making any payment to an Indemnified Party for any indemnification claim pursuant to this Article VIII, the Indemnifying Party shall be subrogated, to the extent of such payment, to any rights which the Indemnified Party or its Affiliates may have against any other Persons with respect to the subject matter underlying such indemnification claim and the Indemnified Party shall, at the Indemnifying Party's sole cost and expense, take such actions as the Indemnifying Party may reasonably require to perfect such subrogation or to pursue such rights against such other Persons as the Indemnified Party or its Affiliates may have.
Certain Other Matters. Notwithstanding the foregoing provisions of this Section 3, the following shall apply:
(i) The Executive (and his spouse and heirs) shall not be entitled to any change in control payments under this Agreement from the Bank in the event of his death.
(ii) All outstanding awards of cash bonuses, stock options, restricted stock and other incentive compensation (whether cash or equity based) from the Company or the Bank shall vest or be earned and be paid or distributed to, or be exercisable by, as the case may be, the Executive in accordance with the applicable plan or award agreement governing such awards.
(iii) Upon any termination of the Executive’s employment, the Executive shall execute (and not subsequently rescind or revoke) a release substantially similar to the release attached to this Agreement as Exhibit A as a condition to the Executive receiving any of the amounts set forth in this Section 3.
(iv) At all times while employed by the Bank and at all times following any termination of his employment, the Executive shall not make or publish any negative or disparaging statements or comments of any kind or character whatsoever about the Company, the Bank, any of their directors, officers, employees or customers or the business, operations, affairs, profitability, strategies or policies of the Company or the Bank.
(v) If the Executive breaches any provision of this Agreement, whether before or after any termination of his employment with the Bank, or refuses to execute (or rescinds or revokes) the release attached to this Agreement as Exhibit A (or a release substantially similar to the release attached to this Agreement as Exhibit A), then the Bank’s obligation to make any change in control payments or to make any reimbursement for the premiums associated with the COBRA continuation coverage to the Executive under this Section 3 shall terminate immediately without reinstatement of any obligation of the Bank to pay or reimburse, or to resume paying or reimbursing following any cure of a breach, the Executive hereunder. Notwithstanding any such termination of the Bank’s obligation to pay or reimburse, (A) the covenants and agreements set forth in Sections 3(c)(iv), 4, 5, 6, 7 and 8 hereof shall continue in full force and effect and be binding upon the Executive, (B) the Bank shall be entitled to the remedies specified in Section 7 hereof, among others, and (C) the existence of any claim or cause of action of the Executive against the Bank, whether predi...
Certain Other Matters. Section 8.1.
Certain Other Matters. Upon making any Indemnity Payment, Indemnitor will, to the extent of such Indemnity Payment, be subrogated to all rights of Indemnitee against any third Person (other than any Tax authority) in respect of the Indemnifiable Loss to which the Indemnity Payment related. Without limiting the generality or effect of any other provision hereof, each such Indemnitee and Indemnitor will duly execute upon request all instruments reasonably necessary to evidence and perfect the above-described subrogation rights.
Certain Other Matters. Upon making any Indemnity Payment Indemnitor will, to the extent of such Indemnity Payment, be subrogated to all rights of Indemnitee against any third person (other than an insurance company) in respect of the Indemnifiable Loss to which the Indemnity Payment related; provided, however, that (i) Indemnitor shall then be in compliance with its obligations under this Agreement in respect of such Indemnifiable Loss and (ii) until Indemnitee fully recovers payment of its Indemnifiable Loss, any and all claims of the Indemnitor against any such third person on account of such Indemnity Payment will be subrogated and subordinated in right of payment to Indemnitee’s rights against such third person. Without limiting the generality or effect of any other provision hereof, each such Indemnitee and Indemnitor will duly execute upon request all instruments reasonably necessary to evidence and perfect the above-described subrogation and subordination rights. Any Indemnity Payment hereunder shall be treated as an adjustment to the applicable purchase price.
Certain Other Matters. 59 Section 8.1.
Certain Other Matters. Sellers and Buyers hereby acknowledge and agree as follows: (a) Buyers have conducted an independent investigation of the Assets and, except for the representations, warranties, covenants and obligations of Sellers expressly set forth in this Agreement, are purchasing the Assets on an “as-is, where-is” basis, (b) except as expressly set forth in Article III, Sellers make no representations or warranties, express or implied, at law or in equity, in respect of the Assets or otherwise in connection with this Agreement including with respect to merchantability or fitness for any particular purpose, and any such other representations or warranties are hereby expressly disclaimed, (c) except as expressly set forth in Article III, Buyers have not relied on any representations or warranties by or on behalf of Sellers in connection with their execution of this Agreement or the consummation of the Transactions, and any such other representations or warranties shall not be implied at law or in equity, (d) except as expressly set forth in Article IV, Buyers make no representations or warranties, express or implied, at law or in equity, in connection with this Agreement, and any such other representations or warranties are hereby expressly disclaimed, and (e) except as expressly set forth in Article IV, Sellers have not relied on any representations or warranties by or on behalf of Buyers in connection with their execution of this Agreement or the consummation of the Transactions, and any such other representations or warranties shall not be implied at law or in equity. The terms and provisions of this paragraph shall survive the Closing hereunder.
