Certain Other Matters. (i) 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 Xxxxx'x 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 $200,000,000) 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 Xxxxx'x or Fitch is then rating Preferred Shares and such issuance would, at the time thereof, cause the Trust not to satisfy the 1940 Act Preferred Shares Asset Coverage or the Preferred Shares Basic Maintenance Amount. 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, file a voluntary application for relief under Federal bankruptcy law or any similar application under state law for so long as the Trust is solvent and does not foresee becoming insolvent.
Appears in 2 contracts
Certain Other Matters. (i) 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 Xxxxx'x 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 $200,000,000____________) 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 Xxxxx'x Moody's or Fitch is then rating xxxxxx Preferred Shares and such issuance would, at the time thereof, cause the Trust not to satisfy the 1940 Act Preferred Shares Asset Coverage or the Preferred Shares Basic Maintenance Amount. 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, file a voluntary application for relief under Federal bankruptcy law or any similar application under state law for so long as the Trust is solvent and does not foresee becoming insolvent.
Appears in 2 contracts
Samples: RMR Hospitality & Real Estate Fund, RMR Hospitality & Real Estate Fund
Certain Other Matters. (i) 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 Xxxxx'x 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 $200,000,000___) 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 Xxxxx'x Moody's or Fitch is then rating Preferred raxxxx Xxeferred Shares and such issuance would, at the time thereof, cause the Trust not to satisfy the 1940 Act Preferred Shares Asset Coverage or the Preferred Shares Basic Maintenance Amount. 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, file a voluntary application for relief under Federal bankruptcy law or any similar application under state law for so long as the Trust is solvent and does not foresee becoming insolvent.
Appears in 2 contracts
Samples: RMR F.I.R.E. Fund, RMR F.I.R.E. Fund
Certain Other Matters. (a) So long as the Company has complied and is complying with its obligations set forth in this Agreement, from and after the date hereof until the later of (x) the conclusion of the 2013 Annual Meeting and (y) the date that an Icahn Nominee is no longer a member of the Board (it being understood that if such an Icahn Nominee is no longer a member of the Board due to circumstances in which the Icahn Group would be entitled to appoint a Replacement pursuant to Section 2(a)(vi), an Icahn Nominee shall be deemed to continue to be a member of the Board for all purposes of this Agreement until such time as the Icahn Group irrevocably waives in writing any right to designate such a Replacement or appoints such a Replacement) (the later of the foregoing periods, the “Board Representation Period”), no member of the Icahn Group shall, directly or indirectly, and each member of the Icahn Group shall cause each Icahn Affiliate not to, directly or indirectly, (i) INCREASES IN CAPITALIZATION. So long as solicit proxies or written consents of stockholders or conduct any Preferred Shares are outstanding, the Trust shall not, without the affirmative vote other type of referendum (binding 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: (anon-binding) 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 Voting Securities (as defined below), or from the distribution of assets upon dissolution, liquidation or winding up holders of the affairs Voting Securities, 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 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 TrustVoting Securities (other than such encouragement, advice or authorizeinfluence that is consistent with Company management’s recommendation in connection with such matter), create (ii) encourage, advise or issue additional shares of influence any series of Preferred Shares (except thatother person or assist any third party in so encouraging, 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 assisting 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 influencing any person with respect to the payment giving or withholding of distributions and the distribution of assets upon dissolutionany proxy, liquidation or winding up of the affairs of the Trust; PROVIDED, HOWEVER, that if Xxxxx'x and Fitch (consent or other NRSRO) authority to vote or in conducting any other type of referendum (other than such encouragement, advice or influence that is not then rating the Preferred Sharesconsistent with Company management’s recommendation in connection with such matter), 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 $200,000,000) 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) form or join in a partnership, limited partnership, syndicate or other group, including without limitation a group as defined under Section 13(d) of the authorizationExchange Act, creation and issuance of classes or series of shares ranking junior to Preferred Shares with respect to the payment of distributions and Voting Securities (it being understood that a Permitted Person (or Permitted Persons) as long as it is (or they are) such engaging in Permitted Activities (each as defined in the distribution of assets upon dissolution, liquidation or winding up of the affairs of the Trust, will Rights Plan) shall not be deemed to affect such preferencesbe or create a “group” for purposes of this clause (iii)), rights or powers only if Xxxxx'x otherwise support or Fitch is then rating Preferred Shares and such issuance wouldparticipate in any effort by a third party with respect to the matters set forth in clause (i) above, (iv) present at the time thereof, cause the Trust not to satisfy the 1940 Act Preferred Shares Asset Coverage any Annual Meeting or the Preferred Shares Basic Maintenance Amount. So long as any Preferred Shares are outstanding, the Trust shall not, without the affirmative vote or consent special meeting 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, file a voluntary application for relief under Federal bankruptcy law or any similar application under state law for so long as the Trust is solvent and does not foresee becoming insolvent.Company’s stockholders any
Appears in 2 contracts
Samples: Settlement Agreement, Settlement Agreement (Navistar International Corp)
Certain Other Matters. (a) So long as the Company has complied and is complying with its obligations set forth in this Agreement, from and after the date hereof until the later of (x) the conclusion of the 2013 Annual Meeting and (y) the date that an Icahn Nominee is no longer a member of the Board (it being understood that if such an Icahn Nominee is no longer a member of the Board due to circumstances in which the Icahn Group would be entitled to appoint a Replacement pursuant to Section 2(a)(vi), an Icahn Nominee shall be deemed to continue to be a member of the Board for all purposes of this Agreement until such time as the Icahn Group irrevocably waives in writing any right to designate such a Replacement or appoints such a Replacement) (the later of the foregoing periods, the “Board Representation Period”), no member of the Icahn Group shall, directly or indirectly, and each member of the Icahn Group shall cause each Icahn Affiliate not to, directly or indirectly, (i) INCREASES IN CAPITALIZATION. So long as solicit proxies or written consents of stockholders or conduct any Preferred Shares are outstanding, the Trust shall not, without the affirmative vote other type of referendum (binding 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: (anon-binding) 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 Voting Securities (as defined below), or from the distribution of assets upon dissolution, liquidation or winding up holders of the affairs Voting Securities, 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 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 TrustVoting Securities (other than such encouragement, advice or authorizeinfluence that is consistent with Company management’s recommendation in connection with such matter), create (ii) encourage, advise or issue additional shares of influence any series of Preferred Shares (except thatother person or assist any third party in so encouraging, 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 assisting 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 influencing any person with respect to the payment giving or withholding of distributions and the distribution of assets upon dissolutionany proxy, liquidation or winding up of the affairs of the Trust; PROVIDED, HOWEVER, that if Xxxxx'x and Fitch (consent or other NRSRO) authority to vote or in conducting any other type of referendum (other than such encouragement, advice or influence that is not then rating the Preferred Sharesconsistent with Company management’s recommendation in connection with such matter), 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 $200,000,000) 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) form or join in a partnership, limited partnership, syndicate or other group, including without limitation a group as defined under Section 13(d) of the authorizationExchange Act, creation and issuance of classes or series of shares ranking junior to Preferred Shares with respect to the payment of distributions and Voting Securities (it being understood that a Permitted Person (or Permitted Persons) as long as it is (or they are) such engaging in Permitted Activities (each as defined in the distribution of assets upon dissolution, liquidation or winding up of the affairs of the Trust, will Rights Plan) shall not be deemed to affect such preferencesbe or create a “group” for purposes of this clause (iii)), rights or powers only if Xxxxx'x otherwise support or Fitch is then rating Preferred Shares and such issuance wouldparticipate in any effort by a third party with respect to the matters set forth in clause (i) above, (iv) present at any Annual Meeting or any special meeting of the Company’s stockholders any proposal for consideration for action by stockholders or (except as explicitly permitted by this Agreement) propose any nominee for election to the Board, other than through action at the time thereofBoard by the Icahn Nominee acting in his or her capacity as such, cause (v) grant any proxy, consent or other authority to vote with respect to any matters (other than to the Trust not to satisfy named proxies included in the 1940 Act Preferred Shares Asset Coverage Company’s proxy card for any annual meeting of stockholders (an “Annual Meeting”)) or deposit any of the Voting Securities held by the Icahn Group or the Preferred Shares Basic Maintenance Amount. So long Icahn Affiliates in a voting trust or subject them to a voting agreement or other arrangement of similar effect with respect to any Annual Meeting except as provided in Section 3(b) below, (vi) make any Preferred Shares are outstandingrequest under Section 220 of the Delaware General Corporation Law, (vii) make, or cause to be made, by press release or similar public statement to the press or media, any statement or announcement that constitutes an ad hominem attack on, or otherwise disparages (as distinct from objective statements reflecting business criticism), the Trust shall notCompany, without the affirmative vote its officers or consent its directors or any person who has served as an officer or director of the Holders of at least a majority of Company in the Preferred Shares outstanding at the timepast or (viii) institute, in person solicit, assist or by proxyjoin, either in writing or at a meeting, voting as a separate classparty, file a voluntary application for relief under Federal bankruptcy law any litigation, arbitration or other proceeding against or involving the Company or any similar application under state law for so long as of its current or former directors or officers (including derivative actions). As used in this Agreement, the Trust is solvent and does not foresee becoming insolvent.term “
Appears in 1 contract
Samples: Settlement Agreement (Icahn Carl C)
Certain Other Matters. (a) So long as the Company has complied and is complying with its obligations set forth in this Amendment, from and after the date of this Amendment until the later of (x) the first business day following the 2014 Annual Meeting and (y) the 10th business day following the date that no MHR Nominee is a member of the Board (it being understood that if no MHR Nominee is a member of the Board due to circumstances in which the MHR Group would be entitled to designate a Replacement pursuant to Section 1(c)(iii), an MHR Nominee shall be deemed to continue to be a member of the Board for all purposes of this Agreement until such time as the MHR Group irrevocably waives in writing any right to designate such a Replacement or designates such a Replacement) (the later of the foregoing periods, the “Board Representation Period”), except as expressly permitted by the terms of this Amendment, no member of the MHR Group shall, directly or indirectly, and each member of the MHR Group shall cause each MHR Affiliate not to, directly or indirectly, (i) INCREASES IN CAPITALIZATION. So long as solicit proxies or written consents of stockholders or conduct any Preferred Shares are outstanding, the Trust shall not, without the affirmative vote other type of referendum (binding 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: (anon-binding) 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 Voting Securities (as defined below), or from the distribution of assets upon dissolution, liquidation or winding up holders of the affairs Voting Securities, 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 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 TrustVoting Securities (other than such encouragement, advice or authorizeinfluence that is consistent with Company management’s recommendation in connection with such matter), create (ii) encourage, advise or issue additional shares of influence any series of Preferred Shares (except thatother person or assist any third party in so encouraging, 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 assisting 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 influencing any person with respect to the payment giving or withholding of distributions and the distribution of assets upon dissolutionany proxy, liquidation or winding up of the affairs of the Trust; PROVIDED, HOWEVER, that if Xxxxx'x and Fitch (consent or other NRSRO) authority to vote or in conducting any other type of referendum (other than such encouragement, advice or influence that is not then rating the Preferred Sharesconsistent with Company management’s recommendation in connection with such matter), 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 $200,000,000) 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) form or join in a partnership, limited partnership, syndicate or other group, including without limitation a group as defined under Section 13(d) of the authorizationExchange Act, creation and issuance of classes or series of shares ranking junior to Preferred Shares with respect to the payment of distributions and Voting Securities (it being understood that a Permitted Person (or Permitted Persons), as long as it is (or they are) such, engaging in Permitted Activities (each as defined in the distribution of assets upon dissolution, liquidation or winding up of the affairs of the Trust, will Rights Agreement) shall not be deemed to affect such preferencesbe or create a partnership, rights limited partnership, syndicate or powers only if Xxxxx'x other group, including without limitation a group as defined under Section 13(d) of the Exchange Act, for purposes of this clause (iii)), or Fitch is then rating Preferred Shares and such issuance wouldotherwise support or participate in any effort by a third party with respect to the matters set forth in clause (i) above, (iv) present at any Annual Meeting or any special meeting of the Company’s stockholders any proposal for consideration for action by stockholders or (except as explicitly permitted by this Agreement) propose any nominee for election to the Board, other than through action at the time thereofBoard by any MHR Nominee acting in his or her capacity as such, cause (v) grant any proxy, consent or other authority to vote with respect to any matters (other than to the Trust not to satisfy named proxies included in the 1940 Act Preferred Shares Asset Coverage Company’s proxy card for any annual meeting of stockholders (an “Annual Meeting”)) or deposit any of the Voting Securities held by the MHR Group or the Preferred Shares Basic Maintenance Amount. So long MHR Affiliates in a voting trust or subject them to a voting agreement or other arrangement of similar effect with respect to any Annual Meeting except as provided in Section 2(b) below, (vi) make any Preferred Shares are outstanding, the Trust shall not, without the affirmative vote or consent request under Section 220 of the Holders of at least a majority of Delaware General Corporation Law, (vii) make, or cause to be made, by press release or similar public statement to the Preferred Shares outstanding at the timepress or media, in person or by proxy, either in writing or at a meeting, voting as a separate class, file a voluntary application for relief under Federal bankruptcy law or any similar application under state law for so long as the Trust is solvent and does not foresee becoming insolvent.statement or
Appears in 1 contract
Certain Other Matters. (a) So long as the Company has complied and is complying with its obligations set forth in this Amendment, from and after the date of this Amendment until the later of (x) the first business day following the 2014 Annual Meeting and (y) the 10th business day following the date that no Icahn Nominee is a member of the Board (it being understood that if no Icahn Nominee is a member of the Board due to circumstances in which the Icahn Group would be entitled to designate a Replacement pursuant to Section 1(c)(iii), an Icahn Nominee shall be deemed to continue to be a member of the Board for all purposes of this Agreement until such time as the Icahn Group irrevocably waives in writing any right to designate such a Replacement or designates such a Replacement) (the later of the foregoing periods, the “Board Representation Period”), except as expressly permitted by the terms of this Amendment, no member of the Icahn Group shall, directly or indirectly, and each member of the Icahn Group shall cause each Icahn Affiliate not to, directly or indirectly, (i) INCREASES IN CAPITALIZATION. So long as solicit proxies or written consents of stockholders or conduct any Preferred Shares are outstanding, the Trust shall not, without the affirmative vote other type of referendum (binding 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: (anon-binding) 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 Voting Securities (as defined below), or from the distribution of assets upon dissolution, liquidation or winding up holders of the affairs Voting Securities, 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 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 TrustVoting Securities (other than such encouragement, advice or authorizeinfluence that is consistent with Company management’s recommendation in connection with such matter), create (ii) encourage, advise or issue additional shares of influence any series of Preferred Shares (except thatother person or assist any third party in so encouraging, 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 assisting 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 influencing any person with respect to the payment giving or withholding of distributions and the distribution of assets upon dissolutionany proxy, liquidation or winding up of the affairs of the Trust; PROVIDED, HOWEVER, that if Xxxxx'x and Fitch (consent or other NRSRO) authority to vote or in conducting any other type of referendum (other than such encouragement, advice or influence that is not then rating the Preferred Sharesconsistent with Company management’s recommendation in connection with such matter), 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 $200,000,000) 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) form or join in a partnership, limited partnership, syndicate or other group, including without limitation a group as defined under Section 13(d) of the authorizationExchange Act, creation and issuance of classes or series of shares ranking junior to Preferred Shares with respect to the payment of distributions and Voting Securities (it being understood that a Permitted Person (or Permitted Persons), as long as it is (or they are) such, engaging in Permitted Activities (each as defined in the distribution of assets upon dissolution, liquidation or winding up of the affairs of the Trust, will Rights Agreement) shall not be deemed to affect such preferencesbe or create a partnership, rights limited partnership, syndicate or powers only if Xxxxx'x other group, including without limitation a group as defined under Section 13(d) of the Exchange Act, for purposes of this clause (iii)), or Fitch is then rating Preferred Shares and such issuance wouldotherwise support or participate in any effort by a third party with respect to the matters set forth in clause (i) above, (iv) present at any Annual Meeting or any special meeting of the Company’s stockholders any proposal for consideration for action by stockholders or (except as explicitly permitted by this Agreement) propose any nominee for election to the Board, other than through action at the time thereofBoard by any Icahn Nominee acting in his or her capacity as such, cause (v) grant any proxy, consent or other authority to vote with respect to any matters (other than to the Trust not to satisfy named proxies included in the 1940 Act Preferred Shares Asset Coverage Company’s proxy card for any annual meeting of stockholders (an “Annual Meeting”)) or deposit any of the Voting Securities held by the Icahn Group or the Preferred Shares Basic Maintenance Amount. So long Icahn Affiliates in a voting trust or subject them to a voting agreement or other arrangement of similar effect with respect to any Annual Meeting except as provided in Section 2(b) below, (vi) make any Preferred Shares are outstandingrequest under Section 220 of the Delaware General Corporation Law, (vii) make, or cause to be made, by press release or similar public statement to the press or media, any statement or announcement that constitutes an ad hominem attack on, or otherwise disparages (as distinct from objective statements reflecting business criticism), the Trust shall notCompany, without the affirmative vote its officers or consent its directors or any person who has served as an officer or director of the Holders of at least a majority of Company in the Preferred Shares outstanding at the timepast or (viii) institute, in person solicit, assist or by proxyjoin, either in writing or at a meeting, voting as a separate classparty, file a voluntary application for relief under Federal bankruptcy law any litigation, arbitration or other proceeding against or involving the Company or any similar application under state law for so long as of its current or former directors or officers (including derivative actions). As used in this Agreement, the Trust is solvent and does not foresee becoming insolvent.term “
Appears in 1 contract
Samples: Rights Agreement (Icahn Carl C)
Certain Other Matters. (i) 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 The parties acknowledge that an Icahn Designee may resign from the Board at any class or series of shares ranking time by giving at least twenty-five (25) calendar days prior to or on a parity with Preferred Shares with respect written notice to the payment Board. From the date of distributions or this Agreement until the distribution later of assets upon dissolution, liquidation or winding up (x) the conclusion of the affairs 2015 Annual Meeting and (y) the date that no Icahn Designee is a member of the TrustBoard (it being understood that if such an Icahn Designee is no longer a member of the Board due to circumstances in which the Icahn Group would be entitled to appoint a Replacement, or authorize, create or issue additional shares an Icahn Designee shall be deemed to continue to be a member of any series of Preferred Shares (except that, notwithstanding the foregoing, but subject to the provisions of paragraph (c) of Section 13 Board for all purposes of this Part I, Agreement until such time as the Icahn Group irrevocably waives in writing any right to designate such a Replacement or appoints such a Replacement (the “Replacement Waiver”); provided that if an Icahn Designee resigns and fails to give at least twenty-five (25) calendar days prior notice to the Board of Trusteessuch resignation, 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 Xxxxx'x 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 $200,000,000) 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 an Icahn Designee shall be deemed to affect such preferences, rights or powers, continue to be a member of the Board for purposes of this Section 2(a) of this Agreement until the twenty-fifth (ii25th) a division or split day following the later of a Preferred Share will be deemed to affect such preferences, rights or powers only if (A) the terms effective date of such division adversely affect the Holders of Preferred Shares resignation and (iiiB) 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 date of the affairs of the Trust, will be deemed to affect Replacement Waiver) (such preferences, rights or powers only if Xxxxx'x or Fitch is then rating Preferred Shares and such issuance would, at the time thereof, cause the Trust not to satisfy the 1940 Act Preferred Shares Asset Coverage or the Preferred Shares Basic Maintenance Amount. So long as any Preferred Shares are outstandingperiod, the Trust shall not“Board Representation Period”), 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, file a voluntary application for relief under Federal bankruptcy law or any similar application under state law for so long as the Trust is solvent Company has not materially breached this Agreement and does failed to cure such breach within five (5) business days of written notice from any member of the Icahn Group specifying any such breach, no member of the Icahn Group shall, directly or indirectly, and each member of the Icahn Group shall cause each Icahn Affiliate not foresee becoming insolvent.to, directly or indirectly (it being understood and agreed that none of the following restrictions shall apply to any Icahn Designee or Replacement solely in such person’s capacity as a director of the Company or in any way prevent or restrict such director from raising any of the matters described in the following restrictions with other members of the Board (solely in their capacity as directors)):
Appears in 1 contract
Samples: Rights Agreement (Hertz Corp)
Certain Other Matters. (a) So long as the Company has complied and is complying with its obligations set forth in this Agreement, from and after the date hereof until the later of (x) the conclusion of the 2013 Annual Meeting and (y) the date that an MHR Nominee is no longer a member of the Board (it being understood that if such an MHR Nominee is no longer a member of the Board due to circumstances in which the MHR Group would be entitled to appoint a Replacement pursuant to Section 2(a)(vi), an MHR Nominee shall be deemed to continue to be a member of the Board for all purposes of this Agreement until such time as the MHR Group irrevocably waives in writing any right to designate such a Replacement or appoints such a Replacement) (the later of the foregoing periods, the “Board Representation Period”), no member of the MHR Group shall, directly or indirectly, and each member of the MHR Group shall cause each MHR Affiliate not to, directly or indirectly, (i) INCREASES IN CAPITALIZATION. So long as solicit proxies or written consents of stockholders or conduct any Preferred Shares are outstanding, the Trust shall not, without the affirmative vote other type of referendum (binding 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: (anon-binding) 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 Voting Securities (as defined below), or from the distribution of assets upon dissolution, liquidation or winding up holders of the affairs Voting Securities, 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 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 TrustVoting Securities (other than such encouragement, advice or authorizeinfluence that is consistent with Company management’s recommendation in connection with such matter), create (ii) encourage, advise or issue additional shares of influence any series of Preferred Shares (except thatother person or assist any third party in so encouraging, 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 assisting 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 influencing any person with respect to the payment giving or withholding of distributions and the distribution of assets upon dissolutionany proxy, liquidation or winding up of the affairs of the Trust; PROVIDED, HOWEVER, that if Xxxxx'x and Fitch (consent or other NRSRO) authority to vote or in conducting any other type of referendum (other than such encouragement, advice or influence that is not then rating the Preferred Sharesconsistent with Company management’s recommendation in connection with such matter), 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 $200,000,000) 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) form or join in a partnership, limited partnership, syndicate or other group, including without limitation a group as defined under Section 13(d) of the authorizationExchange Act, creation and issuance of classes or series of shares ranking junior to Preferred Shares with respect to the payment of distributions and Voting Securities (it being understood that a Permitted Person (or Permitted Persons) as long as it is (or they are) such engaging in Permitted Activities (each as defined in the distribution of assets upon dissolution, liquidation or winding up of the affairs of the Trust, will Rights Plan) shall not be deemed to affect such preferencesbe or create a “group” for purposes of this clause (iii)), rights or powers only if Xxxxx'x or Fitch is then rating Preferred Shares and such issuance would, at the time thereof, cause the Trust not to satisfy the 1940 Act Preferred Shares Asset Coverage or the Preferred Shares Basic Maintenance Amount. 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, file a voluntary application for relief under Federal bankruptcy law or any similar application under state law for so long as the Trust is solvent and does not foresee becoming insolvent.otherwise support or
Appears in 1 contract
Certain Other Matters. (a) The parties acknowledge that the Dxxxxx Designee may resign from the Board at any time by giving at least twenty-five (25) calendar days prior written notice to the Board. From the date of this Agreement until the later of (i) INCREASES IN CAPITALIZATION. So long as any Preferred Shares are outstandingthe conclusion of the 2021 Annual Meeting, and (ii) the date that the Dxxxxx Designee is no longer a member of the Board (it being understood that if the Dxxxxx Designee is no longer a member of the Board due to circumstances in which the Dxxxxx Group would be entitled to appoint a Replacement, the Trust Dxxxxx Designee shall not, without the affirmative vote or consent be deemed to continue to be a member of the Holders Board for all purposes of this Agreement until such time as the Dxxxxx Group irrevocably waives in writing any right to designate such a Replacement or appoints such a Replacement (the “Replacement Waiver”); provided that if the Dxxxxx Designee resigns and fails to give 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: twenty-five (a25) authorize, create or issue any class or series of shares ranking calendar days prior notice 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 Xxxxx'x and Fitch (or other NRSRO) is not then rating the Preferred Sharessuch resignation, 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 $200,000,000) 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 Dxxxxx Designee shall be deemed to affect such preferences, rights or powers, continue to be a member of the Board for purposes of this Section 2(a) of this Agreement until the twenty-fifth (ii25th) a division or split day following the later of a Preferred Share will be deemed to affect such preferences, rights or powers only if (A) the terms effective date of such division adversely affect the Holders of Preferred Shares resignation and (iiiB) 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 date of the affairs of the Trust, will be deemed to affect Replacement Waiver) (such preferences, rights or powers only if Xxxxx'x or Fitch is then rating Preferred Shares and such issuance would, at the time thereof, cause the Trust not to satisfy the 1940 Act Preferred Shares Asset Coverage or the Preferred Shares Basic Maintenance Amount. So long as any Preferred Shares are outstandingperiod, the Trust shall not“Board Representation Period”), 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, file a voluntary application for relief under Federal bankruptcy law or any similar application under state law for so long as the Trust is solvent Company has not materially breached this Agreement and does failed to cure such breach within five (5) business days of written notice from any member of the Dxxxxx Group specifying any such breach, no member of the Dxxxxx Group shall, directly or indirectly, and each member of the Dxxxxx Group shall cause each Dxxxxx Affiliate not foresee becoming insolvent.to, directly or indirectly (it being understood and agreed that none of the following restrictions shall apply to the Dxxxxx Designee or Replacement solely in such person’s capacity as a director of the Company or in any way prevent or restrict such director from privately raising any of the matters described in the following restrictions with other members of the Board (solely in their capacity as directors)):
Appears in 1 contract
Samples: Nomination and Standstill Agreement (Deason Darwin)
Certain Other Matters. (a) So long as the Company has complied and is complying with its obligations set forth in this Amendment, from and after the date of this Amendment until the later of (x) the first business day following the 2014 Annual Meeting and (y) the 10th business day following the date that no Icahn Nominee is a member of the Board (it being understood that if no Icahn Nominee is a member of the Board due to circumstances in which the Icahn Group would be entitled to designate a Replacement pursuant to Section 1(c)(iii), an Icahn Nominee shall be deemed to continue to be a member of the Board for all purposes of this Agreement until such time as the Icahn Group irrevocably waives in writing any right to designate such a Replacement or designates such a Replacement) (the later of the foregoing periods, the “Board Representation Period”), except as expressly permitted by the terms of this Amendment, no member of the Icahn Group shall, directly or indirectly, and each member of the Icahn Group shall cause each Icahn Affiliate not to, directly or indirectly, (i) INCREASES IN CAPITALIZATION. So long as solicit proxies or written consents of stockholders or conduct any Preferred Shares are outstanding, the Trust shall not, without the affirmative vote other type of referendum (binding 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: (anon-binding) 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 Voting Securities (as defined below), or from the distribution of assets upon dissolution, liquidation or winding up holders of the affairs Voting Securities, 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 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 TrustVoting Securities (other than such encouragement, advice or authorizeinfluence that is consistent with Company management’s recommendation in connection with such matter), create (ii) encourage, advise or issue additional shares of influence any series of Preferred Shares (except thatother person or assist any third party in so encouraging, 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 assisting 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 influencing any person with respect to the payment giving or withholding of distributions and the distribution of assets upon dissolutionany proxy, liquidation or winding up of the affairs of the Trust; PROVIDED, HOWEVER, that if Xxxxx'x and Fitch (consent or other NRSRO) authority to vote or in conducting any other type of referendum (other than such encouragement, advice or influence that is not then rating the Preferred Sharesconsistent with Company management’s recommendation in connection with such matter), 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 $200,000,000) 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) form or join in a partnership, limited partnership, syndicate or other group, including without limitation a group as defined under Section 13(d) of the authorizationExchange Act, creation and issuance of classes or series of shares ranking junior to Preferred Shares with respect to the payment of distributions and Voting Securities (it being understood that a Permitted Person (or Permitted Persons), as long as it is (or they are) such, engaging in Permitted Activities (each as defined in the distribution of assets upon dissolution, liquidation or winding up of the affairs of the Trust, will Rights Agreement) shall not be deemed to affect such preferencesbe or create a partnership, rights limited partnership, syndicate or powers only if Xxxxx'x other group, including without limitation a group as defined under Section 13(d) of the Exchange Act, for purposes of this clause (iii)), or Fitch is then rating Preferred Shares and such issuance wouldotherwise support or participate in any effort by a third party with respect to the matters set forth in clause (i) above, (iv) present at any Annual Meeting or any special meeting of the Company’s stockholders any proposal for consideration for action by stockholders or (except as explicitly permitted by this Agreement) propose any nominee for election to the Board, other than through action at the time thereofBoard by any Icahn Nominee acting in his or her capacity as such, cause (v) grant any proxy, consent or other authority to vote with respect to any matters (other than to the Trust not to satisfy named proxies included in the 1940 Act Preferred Shares Asset Coverage Company’s proxy card for any annual meeting of stockholders (an “Annual Meeting”)) or deposit any of the Voting Securities held by the Icahn Group or the Preferred Shares Basic Maintenance Amount. So long Icahn Affiliates in a voting trust or subject them to a voting agreement or other arrangement of similar effect with respect to any Annual Meeting except as provided in Section 2(b) below, (vi) make any Preferred Shares are outstanding, the Trust shall not, without the affirmative vote or consent request under Section 220 of the Holders of at least a majority of Delaware General Corporation Law, (vii) make, or cause to be made, by press release or similar public statement to the Preferred Shares outstanding at the timepress or media, in person or by proxy, either in writing or at a meeting, voting as a separate class, file a voluntary application for relief under Federal bankruptcy law or any similar application under state law for so long as the Trust is solvent and does not foresee becoming insolvent.statement or
Appears in 1 contract
