Priority of Dividends. So long as any shares of Series A Preferred Stock remain outstanding, unless all Dividends then payable as of the applicable date of determination, whether or not declared, on all outstanding shares of Series A Preferred Stock have been declared and paid (or in the case of PIK Dividends, added to the Accrued Value), including any accrued and unpaid Dividends on the Series A Preferred Stock that are then in arrears, or have been or contemporaneously are declared and a sum sufficient for the payment of those dividends has been or is set aside for the benefit of the Holders, the Company may not declare any dividend or other cash distribution on, or make any distributions relating to, Junior Stock, or redeem, purchase, acquire (either directly or through any Subsidiary) or make a liquidation payment relating to, any Junior Stock, other than: (i) purchases, redemptions or other acquisitions of shares of Junior Stock in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of current or former employees, officers, directors or consultants; (ii) purchases of Junior Stock through the use of the proceeds of a substantially contemporaneous sale of other shares of Junior Stock; (iii) as a result of an exchange, reclassification or conversion of any class or series of Junior Stock for or into any other class or series of Junior Stock; (iv) purchases of fractional interests in shares of Junior Stock pursuant to the conversion, reclassification or exchange provisions of such Junior Stock or the security being converted, reclassified or exchanged; (v) payment of any dividends in respect of Junior Stock where the dividend is in the form of the same stock or rights to purchase the same stock as that on which the dividend is being paid; (vi) distributions of Junior Stock or rights to purchase Junior Stock; (vii) purchases, redemptions or other acquisitions of Junior Stock for an aggregate amount up to $10,000,000; or (viii) any dividend in connection with the implementation of a shareholders’ rights or similar plan, or the redemption, exchange or repurchase of any rights under any such. Notwithstanding the foregoing, for so long as any shares of Series A Preferred Stock remain outstanding, if dividends are not declared and paid in full upon the shares of Series A Preferred Stock and any Parity Stock, all dividends declared upon shares of Series A Preferred Stock and ▇▇▇▇-▇▇▇▇-▇▇▇▇.13 any Parity Stock will be declared on a proportional basis so that the amount of dividends declared per share will bear to each other the same ratio that all accrued and unpaid dividends as of the end of the most recent Dividend Payment Period per share of Series A Preferred Stock and accrued and unpaid dividends as of the end of the most recent dividend period per share of any Parity Stock bear to each other. Subject to the provisions of this Section 4 and Sections 4.11 and 4.12 of the Investment Agreement, dividends may be authorized by the Board, or any duly authorized committee thereof, and declared and paid by the Company, or any duly authorized committee thereof, on any Junior Stock from time to time, and in addition to the rights set forth in this Section 4, the Holders shall be entitled to participate in those dividends on an as-converted basis (pursuant to Section 6 without regard to any limitations on convertibility set forth therein) (other than pursuant to the adjustments otherwise provided under Section 11(b) or Section 12(a), as applicable).
Appears in 1 contract
Sources: Investment Agreement (eHealth, Inc.)
Priority of Dividends. So long as any shares of Series A T Preferred Stock remain outstanding,
(1) no dividend shall be declared and paid or set aside for payment and no distribution shall be declared and made or set aside for payment on any Common Stock, unless all Dividends then and no shares of Common Stock shall be repurchased, redeemed or otherwise acquired for consideration by the Corporation, directly or indirectly, nor shall any monies be paid to or made available for a sinking fund for the redemption of any such Common Stock by the Corporation (other than (i) a dividend payable as in Common Stock or (ii) the acquisition of shares of Common Stock in exchange for, or through application of proceeds of the applicable date sale of, shares of determinationCommon Stock);
(2) no dividend shall be declared and paid or set aside for payment and no distribution shall be declared and made or set aside for payment on any Junior Stock other than Common Stock, whether and no shares of Junior Stock other than Common Stock shall be repurchased, redeemed or not declaredotherwise acquired for consideration by the Corporation, directly or indirectly, nor shall any monies be paid to or made available for a sinking fund for the redemption of any such Junior Stock other than Common Stock by the Corporation (other than (i) a dividend payable solely in shares of Junior Stock, (ii) any dividend in connection with the implementation of a stockholder rights plan, or the redemption or repurchase of any rights under any such plan, (iii) any dividend in the form of stock, warrants, options or other rights where the dividend stock or stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks equally with or junior to such stock, (iv) as a result of a reclassification of Junior Stock other than Common Stock for or into other Junior Stock, (v) the exchange or conversion of one share of Junior Stock other than Common Stock for or into another share of Junior Stock, (vi) through the use of proceeds of a substantially contemporaneous sale of other shares of Junior Stock, (vii) any purchase, redemption or other acquisition of Junior Stock other than Common Stock pursuant to any of the Corporation’s or any of its subsidiaries’ employee, consultant or director incentive or benefit plans or arrangements (including any employment, severance or consulting arrangements) adopted before or after July 14, 2014, (viii) any purchase of fractional interests in shares of Junior Stock other than Common Stock pursuant to the conversion or exchange provisions of such Junior Stock other than Common Stock or the securities being converted or exchanged, (ix) the purchase of Junior Stock other than Common Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with the distribution thereof or (x) the purchase of Junior Stock other than Common Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with market-making or other secondary market activities in the ordinary course of business); and
(3) no shares of Parity Stock will be repurchased, redeemed or otherwise acquired for consideration by the Corporation otherwise than pursuant to pro rata offers to purchase all, or a pro rata portion, of the Series T Preferred Stock and such Parity Stock during a Dividend Period (other than (i) as a result of a reclassification of Parity Stock for or into other Parity Stock or Junior Stock, (ii) the exchange or conversion of one share of Parity Stock for or into another share of Parity Stock or Junior Stock, (iii) through the use of proceeds of a substantially contemporaneous sale of other shares of Parity Stock or Junior Stock, (iv) any purchase, redemption or other acquisition of Parity Stock pursuant to any of the Corporation’s or any of its subsidiaries’ employee, consultant or director incentive or benefit plans or arrangements (including any employment, severance or consulting arrangements) adopted before or after July 14, 2014, (v) any purchase of fractional interests in shares of Parity Stock pursuant to the conversion or exchange provisions of such Parity Stock or the securities being converted or exchanged, (vi) the purchase of Parity Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with the distribution thereof or (vii) the purchase of Parity Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with market-making or other secondary market activities in the ordinary course of business), unless, in each case, the full dividends for the then-current Dividend Period on all outstanding shares of the Series A T Preferred Stock have been declared and paid (or in the case of PIK Dividends, added to the Accrued Value), including any accrued and unpaid Dividends on the Series A Preferred Stock that are then in arrears, or have been or contemporaneously are declared and a sum sufficient for the payment of those dividends has been or is set aside for the benefit of the Holders, the Company may not declare any dividend or other cash distribution on, or make any distributions relating to, Junior Stock, or redeem, purchase, acquire (either directly or through any Subsidiary) or make a liquidation payment relating to, any Junior Stock, other than:
(i) purchases, redemptions or other acquisitions of shares of Junior Stock in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of current or former employees, officers, directors or consultants;
(ii) purchases of Junior Stock through the use of the proceeds of a substantially contemporaneous sale of other shares of Junior Stock;
(iii) as a result of an exchange, reclassification or conversion of any class or series of Junior Stock for or into any other class or series of Junior Stock;
(iv) purchases of fractional interests in shares of Junior Stock pursuant aside. Subject to the conversion, reclassification or exchange provisions of such Junior Stock or the security being converted, reclassified or exchanged;
(v) payment of any dividends in respect of Junior Stock where the dividend is in the form of the same stock or rights to purchase the same stock as that on which the dividend is being paid;
(vi) distributions of Junior Stock or rights to purchase Junior Stock;
(vii) purchases, redemptions or other acquisitions of Junior Stock for an aggregate amount up to $10,000,000; or
(viii) any dividend in connection with the implementation of a shareholders’ rights or similar plan, or the redemption, exchange or repurchase of any rights under any such. Notwithstanding the foregoingsucceeding sentence, for so long as any shares of Series A T Preferred Stock remain outstanding, if no dividends are not declared and shall be declared, paid, or set aside for payment on any Parity Stock for any period unless full dividends on all outstanding shares of Series T Preferred Stock for the then-current Dividend Period have been paid in full upon or declared and a sum sufficient for the shares of payment thereof set aside. To the extent the Corporation declares dividends on the Series A T Preferred Stock and any Parity Stock, all dividends declared upon shares of Series A Preferred Stock and ▇▇▇▇-▇▇▇▇-▇▇▇▇.13 on any Parity Stock but cannot make full payment of those declared dividends, the Corporation will be declared allocate the dividend payments on a proportional basis so that among the amount holders of dividends declared per share will bear to each other the same ratio that all accrued and unpaid dividends as of the end of the most recent Dividend Payment Period per share shares of Series A T Preferred Stock and accrued and unpaid dividends as of the end of the most recent dividend period per share holders of any Parity Stock bear to each otherthen outstanding where the terms of such Parity Stock provide similar dividend rights. Subject to the provisions foregoing, and not otherwise, such dividends (payable in cash, stock or otherwise) as may be determined by the Board of this Section 4 and Sections 4.11 and 4.12 Directors of the Investment Agreement, dividends may be authorized by the Board, Corporation or any duly authorized committee thereof, and of the Board of Directors of the Corporation may be declared and paid by on the CompanyCommon Stock and any other stock that is Parity Stock or Junior Stock, or any duly authorized committee thereof, on any Junior Stock from time to timetime out of any assets legally available for such payment, and in addition to the rights set forth in this Section 4, the Holders shares of Series T Preferred Stock shall not be entitled to participate in those dividends on an as-converted basis (pursuant to Section 6 without regard to any limitations on convertibility set forth therein) (other than pursuant to the adjustments otherwise provided under Section 11(b) or Section 12(a), as applicable)such dividends.
Appears in 1 contract
Priority of Dividends. So long as any shares of Series A O Preferred Stock remain outstanding,
(1) no dividend shall be declared and paid or set aside for payment and no distribution shall be declared and made or set aside for payment on any Common Stock, unless all Dividends then and no shares of Common Stock shall be repurchased, redeemed or otherwise acquired for consideration by the Corporation, directly or indirectly, nor shall any monies be paid to or made available for a sinking fund for the redemption of any such Common Stock by the Corporation (other than (i) a dividend payable as in Common Stock or (ii) the acquisition of shares of Common Stock in exchange for, or through application of proceeds of the applicable date sale of, shares of determinationCommon Stock);
(2) no dividend shall be declared and paid or set aside for payment and no distribution shall be declared and made or set aside for payment on any Junior Stock other than Common Stock, whether and no shares of Junior Stock other than Common Stock shall be repurchased, redeemed or not declaredotherwise acquired for consideration by the Corporation, directly or indirectly, nor shall any monies be paid to or made available for a sinking fund for the redemption of any such Junior Stock other than Common Stock by the Corporation (other than (i) a dividend payable solely in shares of Junior Stock, (ii) any dividend in connection with the implementation of a stockholder rights plan, or the redemption or repurchase of any rights under any such plan, (iii) any dividend in the form of stock, warrants, options or other rights where the dividend stock or stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks equally with or junior to such stock, (iv) as a result of a reclassification of Junior Stock other than Common Stock for or into other Junior Stock, (v) the exchange or conversion of one share of Junior Stock other than Common Stock for or into another share of Junior Stock, (vi) through the use of proceeds of a substantially contemporaneous sale of other shares of Junior Stock, (vii) any purchase, redemption or other acquisition of Junior Stock other than Common Stock pursuant to any of the Corporation’s or any of its subsidiaries’ employee, consultant or director incentive or benefit plans or arrangements (including any employment, severance or consulting arrangements) adopted before or after November 13, 2012, (viii) any purchase of fractional interests in shares of Junior Stock other than Common Stock pursuant to the conversion or exchange provisions of such Junior Stock other than Common Stock or the securities being converted or exchanged, (ix) the purchase of Junior Stock other than Common Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with the distribution thereof or (x) the purchase of Junior Stock other than Common Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with market-making or other secondary market activities in the ordinary course of business); and
(3) no shares of Parity Stock will be repurchased, redeemed or otherwise acquired for consideration by the Corporation otherwise than pursuant to pro rata offers to purchase all, or a pro rata portion, of the Series O Preferred Stock and such Parity Stock during a Dividend Period (other than (i) as a result of a reclassification of Parity Stock for or into other Parity Stock or Junior Stock, (ii) the exchange or conversion of one share of Parity Stock for or into another share of Parity Stock or Junior Stock, (iii) through the use of proceeds of a substantially contemporaneous sale of other shares of Parity Stock or Junior Stock, (iv) any purchase, redemption or other acquisition of Parity Stock pursuant to any of the Corporation’s or any of its subsidiaries’ employee, consultant or director incentive or benefit plans or arrangements (including any employment, severance or consulting arrangements) adopted before or after November 13, 2012, (v) any purchase of fractional interests in shares of Parity Stock pursuant to the conversion or exchange provisions of such Parity Stock or the securities being converted or exchanged, (vi) the purchase of Parity Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with the distribution thereof or (vii) the purchase of Parity Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with market-making or other secondary market activities in the ordinary course of business), unless, in each case, the full dividends for the then-current Dividend Period on all outstanding shares of the Series A O Preferred Stock have been declared and paid (or in the case of PIK Dividends, added to the Accrued Value), including any accrued and unpaid Dividends on the Series A Preferred Stock that are then in arrears, or have been or contemporaneously are declared and a sum sufficient for the payment of those dividends has been or is set aside for the benefit of the Holders, the Company may not declare any dividend or other cash distribution on, or make any distributions relating to, Junior Stock, or redeem, purchase, acquire (either directly or through any Subsidiary) or make a liquidation payment relating to, any Junior Stock, other than:
(i) purchases, redemptions or other acquisitions of shares of Junior Stock in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of current or former employees, officers, directors or consultants;
(ii) purchases of Junior Stock through the use of the proceeds of a substantially contemporaneous sale of other shares of Junior Stock;
(iii) as a result of an exchange, reclassification or conversion of any class or series of Junior Stock for or into any other class or series of Junior Stock;
(iv) purchases of fractional interests in shares of Junior Stock pursuant aside. Subject to the conversion, reclassification or exchange provisions of such Junior Stock or the security being converted, reclassified or exchanged;
(v) payment of any dividends in respect of Junior Stock where the dividend is in the form of the same stock or rights to purchase the same stock as that on which the dividend is being paid;
(vi) distributions of Junior Stock or rights to purchase Junior Stock;
(vii) purchases, redemptions or other acquisitions of Junior Stock for an aggregate amount up to $10,000,000; or
(viii) any dividend in connection with the implementation of a shareholders’ rights or similar plan, or the redemption, exchange or repurchase of any rights under any such. Notwithstanding the foregoingsucceeding sentence, for so long as any shares of Series A O Preferred Stock remain outstanding, if no dividends are not declared and shall be declared, paid, or set aside for payment on any Parity Stock for any period unless full dividends on all outstanding shares of Series O Preferred Stock for the then-current Dividend Period have been paid in full upon or declared and a sum sufficient for the shares of payment thereof set aside. To the extent the Corporation declares dividends on the Series A O Preferred Stock and any Parity Stock, all dividends declared upon shares of Series A Preferred Stock and ▇▇▇▇-▇▇▇▇-▇▇▇▇.13 on any Parity Stock but cannot make full payment of those declared dividends, the Corporation will be declared allocate the dividend payments on a proportional basis so that among the amount holders of dividends declared per share will bear to each other the same ratio that all accrued and unpaid dividends as of the end of the most recent Dividend Payment Period per share shares of Series A O Preferred Stock and accrued and unpaid dividends as of the end of the most recent dividend period per share holders of any Parity Stock bear to each otherthen outstanding where the terms of such Parity Stock provide similar dividend rights. Subject to the provisions foregoing, and not otherwise, such dividends (payable in cash, stock or otherwise) as may be determined by the Board of this Section 4 and Sections 4.11 and 4.12 Directors of the Investment Agreement, dividends may be authorized by the Board, Corporation or any duly authorized committee thereof, and of the board of Directors of the Corporation may be declared and paid by on the CompanyCommon Stock and any other stock that is Parity Stock or Junior Stock, or any duly authorized committee thereof, on any Junior Stock from time to timetime out of any assets legally available for such payment, and in addition to the rights set forth in this Section 4, the Holders shares of Series O Preferred Stock shall not be entitled to participate in those dividends on an as-converted basis (pursuant to Section 6 without regard to any limitations on convertibility set forth therein) (other than pursuant to the adjustments otherwise provided under Section 11(b) or Section 12(a), as applicable)such dividends.
Appears in 1 contract
Priority of Dividends. So long as any shares of Series A AA Preferred Stock remain outstanding,
(1) no dividend shall be declared and paid or set aside for payment and no distribution shall be declared and made or set aside for payment on any Common Stock, unless all Dividends then and no shares of Common Stock shall be repurchased, redeemed or otherwise acquired for consideration by the Corporation, directly or indirectly, nor shall any monies be paid to or made available for a sinking fund for the redemption of any such Common Stock by the Corporation (other than (i) a dividend payable as in Common Stock or (ii) the acquisition of shares of Common Stock in exchange for, or through application of proceeds of the applicable date sale of, shares of determinationCommon Stock);
(2) no dividend shall be declared and paid or set aside for payment and no distribution shall be declared and made or set aside for payment on any Junior Stock other than Common Stock, whether and no shares of Junior Stock other than Common Stock shall be repurchased, redeemed or not declaredotherwise acquired for consideration by the Corporation, directly or indirectly, nor shall any monies be paid to or made available for a sinking fund for the redemption of any such Junior Stock other than Common Stock by the Corporation (other than (i) a dividend payable solely in shares of Junior Stock, (ii) any dividend in connection with the implementation of a stockholder rights plan, or the redemption or repurchase of any rights under any such plan, (iii) any dividend in the form of stock, warrants, options or other rights where the dividend stock or stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks equally with or junior to such stock, (iv) as a result of a reclassification of Junior Stock other than Common Stock for or into other Junior Stock, (v) the exchange or conversion of one share of Junior Stock other than Common Stock for or into another share of Junior Stock, (vi) through the use of proceeds of a substantially contemporaneous sale of other shares of Junior Stock, (vii) any purchase, redemption or other acquisition of Junior Stock other than Common Stock pursuant to any of the Corporation’s or any of its subsidiaries’ employee, consultant or director incentive or benefit plans or arrangements (including any employment, severance or consulting arrangements) adopted before or after October 21, 2020, (viii) any purchase of fractional interests in shares of Junior Stock other than Common Stock pursuant to the conversion or exchange provisions of such Junior Stock other than Common Stock or the securities being converted or exchanged, (ix) the purchase of Junior Stock other than Common Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with the distribution thereof or (x) the purchase of Junior Stock other than Common Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with market-making or other secondary market activities in the ordinary course of business); and
(3) no shares of Parity Stock will be repurchased, redeemed or otherwise acquired for consideration by the Corporation otherwise than pursuant to pro rata offers to purchase all, or a pro rata portion, of the Series AA Preferred Stock and such Parity Stock during a Dividend Period (other than (i) as a result of a reclassification of Parity Stock for or into other Parity Stock or Junior Stock, (ii) the exchange or conversion of one share of Parity Stock for or into another share of Parity Stock or Junior Stock, (iii) through the use of proceeds of a substantially contemporaneous sale of other shares of Parity Stock or Junior Stock, (iv) any purchase, redemption or other acquisition of Parity Stock pursuant to any of the Corporation’s or any of its subsidiaries’ employee, consultant or director incentive or benefit plans or arrangements (including any employment, severance or consulting arrangements) adopted before or after October 21, 2020, (v) any purchase of fractional interests in shares of Parity Stock pursuant to the conversion or exchange provisions of such Parity Stock or the securities being converted or exchanged, (vi) the purchase of Parity Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with the distribution thereof or (vii) the purchase of Parity Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with market-making or other secondary market activities in the ordinary course of business), unless, in each case, the full dividends for the then-current Dividend Period on all outstanding shares of the Series A AA Preferred Stock have been declared and paid (or in the case of PIK Dividends, added to the Accrued Value), including any accrued and unpaid Dividends on the Series A Preferred Stock that are then in arrears, or have been or contemporaneously are declared and a sum sufficient for the payment of those dividends has been or is set aside for the benefit of the Holders, the Company may not declare any dividend or other cash distribution on, or make any distributions relating to, Junior Stock, or redeem, purchase, acquire (either directly or through any Subsidiary) or make a liquidation payment relating to, any Junior Stock, other than:
(i) purchases, redemptions or other acquisitions of shares of Junior Stock in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of current or former employees, officers, directors or consultants;
(ii) purchases of Junior Stock through the use of the proceeds of a substantially contemporaneous sale of other shares of Junior Stock;
(iii) as a result of an exchange, reclassification or conversion of any class or series of Junior Stock for or into any other class or series of Junior Stock;
(iv) purchases of fractional interests in shares of Junior Stock pursuant aside. Subject to the conversion, reclassification or exchange provisions of such Junior Stock or the security being converted, reclassified or exchanged;
(v) payment of any dividends in respect of Junior Stock where the dividend is in the form of the same stock or rights to purchase the same stock as that on which the dividend is being paid;
(vi) distributions of Junior Stock or rights to purchase Junior Stock;
(vii) purchases, redemptions or other acquisitions of Junior Stock for an aggregate amount up to $10,000,000; or
(viii) any dividend in connection with the implementation of a shareholders’ rights or similar plan, or the redemption, exchange or repurchase of any rights under any such. Notwithstanding the foregoingsucceeding sentence, for so long as any shares of Series A AA Preferred Stock remain outstanding, if no dividends are not declared and shall be declared, paid, or set aside for payment on any Parity Stock for any period unless full dividends on all outstanding shares of Series AA Preferred Stock for the then-current Dividend Period have been paid in full upon or declared and a sum sufficient for the shares of payment thereof set aside. To the extent the Corporation declares dividends on the Series A AA Preferred Stock and any Parity Stock, all dividends declared upon shares of Series A Preferred Stock and ▇▇▇▇-▇▇▇▇-▇▇▇▇.13 on any Parity Stock but cannot make full payment of those declared dividends, the Corporation will be declared allocate the dividend payments on a proportional basis so that among the amount holders of dividends declared per share will bear to each other the same ratio that all accrued and unpaid dividends as of the end of the most recent Dividend Payment Period per share shares of Series A AA Preferred Stock and accrued and unpaid dividends as of the end of the most recent dividend period per share holders of any Parity Stock bear to each otherthen outstanding where the terms of such Parity Stock provide similar dividend rights. Subject to the provisions foregoing, and not otherwise, such dividends (payable in cash, stock or otherwise) as may be determined by the Board of this Section 4 and Sections 4.11 and 4.12 Directors of the Investment Agreement, dividends may be authorized by the Board, Corporation or any duly authorized committee thereof, and of the Board of Directors of the Corporation may be declared and paid by on the CompanyCommon Stock and any other stock that is Parity Stock or Junior Stock, or any duly authorized committee thereof, on any Junior Stock from time to timetime out of any assets legally available for such payment, and in addition to the rights set forth in this Section 4, the Holders shares of Series AA Preferred Stock shall not be entitled to participate in those dividends on an as-converted basis (pursuant to Section 6 without regard to any limitations on convertibility set forth therein) (other than pursuant to the adjustments otherwise provided under Section 11(b) or Section 12(a), as applicable)such dividends.
Appears in 1 contract
Priority of Dividends. So long as any shares share of Series A Preferred Stock remain remains outstanding, unless all Dividends then payable as of the applicable date of determination, whether no dividend or not declared, on all outstanding shares of Series A Preferred Stock have been distribution shall be declared and or paid (or in the case of PIK Dividends, added to the Accrued Value), including any accrued and unpaid Dividends on the Series A Preferred Common Stock that are then in arrears, or have been any other class or contemporaneously are declared and a sum sufficient for the payment series of those dividends has been or is set aside for the benefit of the Holders, the Company may not declare any dividend or other cash distribution on, or make any distributions relating to, Junior Stock, or redeem, purchase, acquire (either directly or through any Subsidiary) or make a liquidation payment relating . The foregoing limitation shall not apply to, any Junior Stock, other than:
(i) any dividend or distribution payable in shares of Common Stock or other Junior Stock, together with cash in lieu of any fractional share;
(ii) purchases, redemptions or other acquisitions of shares of Common Stock or other Junior Stock in connection with the administration in the ordinary course of business of any benefit or other incentive plan or employment contract, benefit plan including (x) the forfeiture of unvested shares of restricted stock or share withholding or other similar arrangement with acquisitions or for surrender of shares to which the benefit holder may otherwise be entitled upon exercise, delivery or vesting of current equity awards (whether in payment of applicable taxes, the exercise price or former employeesotherwise), officers, directors or consultants;
and (iiy) purchases the payment of Junior Stock through the use cash in lieu of the proceeds of a substantially contemporaneous sale of other shares of Junior Stockfractional shares;
(iii) as a result purchases or deemed purchases or acquisitions of an exchange, reclassification or conversion fractional interests in shares of any class Common Stock or series of other Junior Stock pursuant to the conversion or exchange provisions of such shares of other Junior Stock or any securities exchangeable for or convertible into any shares of Common Stock or other class or series of Junior Stock;
(iv) purchases any dividends or distributions of fractional interests in shares of rights or Common Stock or other Junior Stock in connection with a stockholders’ rights plan or any redemption or repurchase of rights pursuant to the conversion, reclassification or exchange provisions of such Junior Stock or the security being converted, reclassified or exchanged;any stockholders’ rights plan; and
(v) payment of any dividends in respect of Junior Stock where the dividend is in the form of the same stock exchange or rights to purchase the same stock as that on which the dividend is being paid;
(vi) distributions of Junior Stock or rights to purchase Junior Stock;
(vii) purchases, redemptions or other acquisitions conversion of Junior Stock for an aggregate amount up to $10,000,000; or
or into other Junior Stock or of Parity Stock for or into other Parity Stock (viii) any dividend in connection with the implementation of a shareholders’ rights same or similar plan, lesser aggregate liquidation preference) or the redemption, exchange or repurchase of any rights under any such. Notwithstanding the foregoing, for so long as any shares of Series A Preferred Stock remain outstanding, if dividends are not declared and paid in full upon the shares of Series A Preferred Junior Stock and any Parity Stock, all dividends declared upon shares the payment of Series A Preferred Stock and ▇▇▇▇-▇▇▇▇-▇▇▇▇.13 any Parity Stock will be declared on a proportional basis so that the amount cash in lieu of dividends declared per share will bear to each other the same ratio that all accrued and unpaid dividends as of the end of the most recent Dividend Payment Period per share of Series A Preferred Stock and accrued and unpaid dividends as of the end of the most recent dividend period per share of any Parity Stock bear to each other. Subject to the provisions of this Section 4 and Sections 4.11 and 4.12 of the Investment Agreement, dividends may be authorized by the Board, or any duly authorized committee thereof, and declared and paid by the Company, or any duly authorized committee thereof, on any Junior Stock from time to time, and in addition to the rights set forth in this Section 4, the Holders shall be entitled to participate in those dividends on an as-converted basis (pursuant to Section 6 without regard to any limitations on convertibility set forth therein) (other than pursuant to the adjustments otherwise provided under Section 11(b) or Section 12(a), as applicable)fractional shares.
Appears in 1 contract
Priority of Dividends. So long as any shares of Series A Y Preferred Stock remain outstanding,
(1) no dividend shall be declared and paid or set aside for payment and no distribution shall be declared and made or set aside for payment on any Common Stock, unless all Dividends then and no shares of Common Stock shall be repurchased, redeemed or otherwise acquired for consideration by the Corporation, directly or indirectly, nor shall any monies be paid to or made available for a sinking fund for the redemption of any such Common Stock by the Corporation (other than (i) a dividend payable as in Common Stock or (ii) the acquisition of shares of Common Stock in exchange for, or through application of proceeds of the applicable date sale of, shares of determinationCommon Stock);
(2) no dividend shall be declared and paid or set aside for payment and no distribution shall be declared and made or set aside for payment on any Junior Stock other than Common Stock, whether and no shares of Junior Stock other than Common Stock shall be repurchased, redeemed or not declaredotherwise acquired for consideration by the Corporation, directly or indirectly, nor shall any monies be paid to or made available for a sinking fund for the redemption of any such Junior Stock other than Common Stock by the Corporation (other than (i) a dividend payable solely in shares of Junior Stock, (ii) any dividend in connection with the implementation of a stockholder rights plan, or the redemption or repurchase of any rights under any such plan, (iii) any dividend in the form of stock, warrants, options or other rights where the dividend stock or stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks equally with or junior to such stock, (iv) as a result of a reclassification of Junior Stock other than Common Stock for or into other Junior Stock, (v) the exchange or conversion of one share of Junior Stock other than Common Stock for or into another share of Junior Stock, (vi) through the use of proceeds of a substantially contemporaneous sale of other shares of Junior Stock, (vii) any purchase, redemption or other acquisition of Junior Stock other than Common Stock pursuant to any of the Corporation’s or any of its subsidiaries’ employee, consultant or director incentive or benefit plans or arrangements (including any employment, severance or consulting arrangements) adopted before or after April 17, 2017, (viii) any purchase of fractional interests in shares of Junior Stock other than Common Stock pursuant to the conversion or exchange provisions of such Junior Stock other than Common Stock or the securities being converted or exchanged, (ix) the purchase of Junior Stock other than Common Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with the distribution thereof or (x) the purchase of Junior Stock other than Common Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with market-making or other secondary market activities in the ordinary course of business); and
(3) no shares of Parity Stock will be repurchased, redeemed or otherwise acquired for consideration by the Corporation otherwise than pursuant to pro rata offers to purchase all, or a pro rata portion, of the Series Y Preferred Stock and such Parity Stock during a Dividend Period (other than (i) as a result of a reclassification of Parity Stock for or into other Parity Stock or Junior Stock, (ii) the exchange or conversion of one share of Parity Stock for or into another share of Parity Stock or Junior Stock, (iii) through the use of proceeds of a substantially contemporaneous sale of other shares of Parity Stock or Junior Stock, (iv) any purchase, redemption or other acquisition of Parity Stock pursuant to any of the Corporation’s or any of its subsidiaries’ employee, consultant or director incentive or benefit plans or arrangements (including any employment, severance or consulting arrangements) adopted before or after April 17, 2017, (v) any purchase of fractional interests in shares of Parity Stock pursuant to the conversion or exchange provisions of such Parity Stock or the securities being converted or exchanged, (vi) the purchase of Parity Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with the distribution thereof or (vii) the purchase of Parity Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with market-making or other secondary market activities in the ordinary course of business), unless, in each case, the full dividends for the then-current Dividend Period on all outstanding shares of the Series A Y Preferred Stock have been declared and paid (or in the case of PIK Dividends, added to the Accrued Value), including any accrued and unpaid Dividends on the Series A Preferred Stock that are then in arrears, or have been or contemporaneously are declared and a sum sufficient for the payment of those dividends has been or is set aside for the benefit of the Holders, the Company may not declare any dividend or other cash distribution on, or make any distributions relating to, Junior Stock, or redeem, purchase, acquire (either directly or through any Subsidiary) or make a liquidation payment relating to, any Junior Stock, other than:
(i) purchases, redemptions or other acquisitions of shares of Junior Stock in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of current or former employees, officers, directors or consultants;
(ii) purchases of Junior Stock through the use of the proceeds of a substantially contemporaneous sale of other shares of Junior Stock;
(iii) as a result of an exchange, reclassification or conversion of any class or series of Junior Stock for or into any other class or series of Junior Stock;
(iv) purchases of fractional interests in shares of Junior Stock pursuant aside. Subject to the conversion, reclassification or exchange provisions of such Junior Stock or the security being converted, reclassified or exchanged;
(v) payment of any dividends in respect of Junior Stock where the dividend is in the form of the same stock or rights to purchase the same stock as that on which the dividend is being paid;
(vi) distributions of Junior Stock or rights to purchase Junior Stock;
(vii) purchases, redemptions or other acquisitions of Junior Stock for an aggregate amount up to $10,000,000; or
(viii) any dividend in connection with the implementation of a shareholders’ rights or similar plan, or the redemption, exchange or repurchase of any rights under any such. Notwithstanding the foregoingsucceeding sentence, for so long as any shares of Series A Y Preferred Stock remain outstanding, if no dividends are not declared and shall be declared, paid, or set aside for payment on any Parity Stock for any period unless full dividends on all outstanding shares of Series Y Preferred Stock for the then-current Dividend Period have been paid in full upon or declared and a sum sufficient for the shares of payment thereof set aside. To the extent the Corporation declares dividends on the Series A Y Preferred Stock and any Parity Stock, all dividends declared upon shares of Series A Preferred Stock and ▇▇▇▇-▇▇▇▇-▇▇▇▇.13 on any Parity Stock but cannot make full payment of those declared dividends, the Corporation will be declared allocate the dividend payments on a proportional basis so that among the amount holders of dividends declared per share will bear to each other the same ratio that all accrued and unpaid dividends as of the end of the most recent Dividend Payment Period per share shares of Series A Y Preferred Stock and accrued and unpaid dividends as of the end of the most recent dividend period per share holders of any Parity Stock bear to each otherthen outstanding where the terms of such Parity Stock provide similar dividend rights. Subject to the provisions foregoing, and not otherwise, such dividends (payable in cash, stock or otherwise) as may be determined by the Board of this Section 4 and Sections 4.11 and 4.12 Directors of the Investment Agreement, dividends may be authorized by the Board, Corporation or any duly authorized committee thereof, and of the Board of Directors of the Corporation may be declared and paid by on the CompanyCommon Stock and any other stock that is Parity Stock or Junior Stock, or any duly authorized committee thereof, on any Junior Stock from time to timetime out of any assets legally available for such payment, and in addition to the rights set forth in this Section 4, the Holders shares of Series Y Preferred Stock shall not be entitled to participate in those dividends on an as-converted basis (pursuant to Section 6 without regard to any limitations on convertibility set forth therein) (other than pursuant to the adjustments otherwise provided under Section 11(b) or Section 12(a), as applicable)such dividends.
Appears in 1 contract
Priority of Dividends. So long as any shares of Series A R Preferred Stock remain outstanding,
(1) no dividend shall be declared and paid or set aside for payment and no distribution shall be declared and made or set aside for payment on any Common Stock, unless all Dividends then and no shares of Common Stock shall be repurchased, redeemed or otherwise acquired for consideration by the Corporation, directly or indirectly, nor shall any monies be paid to or made available for a sinking fund for the redemption of any such Common Stock by the Corporation (other than (i) a dividend payable as in Common Stock or (ii) the acquisition of shares of Common Stock in exchange for, or through application of proceeds of the applicable date sale of, shares of determinationCommon Stock);
(2) no dividend shall be declared and paid or set aside for payment and no distribution shall be declared and made or set aside for payment on any Junior Stock other than Common Stock, whether and no shares of Junior Stock other than Common Stock shall be repurchased, redeemed or not declaredotherwise acquired for consideration by the Corporation, directly or indirectly, nor shall any monies be paid to or made available for a sinking fund for the redemption of any such Junior Stock other than Common Stock by the Corporation (other than (i) a dividend payable solely in shares of Junior Stock, (ii) any dividend in connection with the implementation of a stockholder rights plan, or the redemption or repurchase of any rights under any such plan, (iii) any dividend in the form of stock, warrants, options or other rights where the dividend stock or stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks equally with or junior to such stock, (iv) as a result of a reclassification of Junior Stock other than Common Stock for or into other Junior Stock, (v) the exchange or conversion of one share of Junior Stock other than Common Stock for or into another share of Junior Stock, (vi) through the use of proceeds of a substantially contemporaneous sale of other shares of Junior Stock, (vii) any purchase, redemption or other acquisition of Junior Stock other than Common Stock pursuant to any of the Corporation’s or any of its subsidiaries’ employee, consultant or director incentive or benefit plans or arrangements (including any employment, severance or consulting arrangements) adopted before or after December 11, 2013, (viii) any purchase of fractional interests in shares of Junior Stock other than Common Stock pursuant to the conversion or exchange provisions of such Junior Stock other than Common Stock or the securities being converted or exchanged, (ix) the purchase of Junior Stock other than Common Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with the distribution thereof or (x) the purchase of Junior Stock other than Common Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with market-making or other secondary market activities in the ordinary course of business); and
(3) no shares of Parity Stock will be repurchased, redeemed or otherwise acquired for consideration by the Corporation otherwise than pursuant to pro rata offers to purchase all, or a pro rata portion, of the Series R Preferred Stock and such Parity Stock during a Dividend Period (other than (i) as a result of a reclassification of Parity Stock for or into other Parity Stock or Junior Stock, (ii) the exchange or conversion of one share of Parity Stock for or into another share of Parity Stock or Junior Stock, (iii) through the use of proceeds of a substantially contemporaneous sale of other shares of Parity Stock or Junior Stock, (iv) any purchase, redemption or other acquisition of Parity Stock pursuant to any of the Corporation’s or any of its subsidiaries’ employee, consultant or director incentive or benefit plans or arrangements (including any employment, severance or consulting arrangements) adopted before or after December 11, 2013, (v) any purchase of fractional interests in shares of Parity Stock pursuant to the conversion or exchange provisions of such Parity Stock or the securities being converted or exchanged, (vi) the purchase of Parity Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with the distribution thereof or (vii) the purchase of Parity Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with market-making or other secondary market activities in the ordinary course of business), unless, in each case, the full dividends for the then-current Dividend Period on all outstanding shares of the Series A R Preferred Stock have been declared and paid (or in the case of PIK Dividends, added to the Accrued Value), including any accrued and unpaid Dividends on the Series A Preferred Stock that are then in arrears, or have been or contemporaneously are declared and a sum sufficient for the payment of those dividends has been or is set aside for the benefit of the Holders, the Company may not declare any dividend or other cash distribution on, or make any distributions relating to, Junior Stock, or redeem, purchase, acquire (either directly or through any Subsidiary) or make a liquidation payment relating to, any Junior Stock, other than:
(i) purchases, redemptions or other acquisitions of shares of Junior Stock in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of current or former employees, officers, directors or consultants;
(ii) purchases of Junior Stock through the use of the proceeds of a substantially contemporaneous sale of other shares of Junior Stock;
(iii) as a result of an exchange, reclassification or conversion of any class or series of Junior Stock for or into any other class or series of Junior Stock;
(iv) purchases of fractional interests in shares of Junior Stock pursuant aside. Subject to the conversion, reclassification or exchange provisions of such Junior Stock or the security being converted, reclassified or exchanged;
(v) payment of any dividends in respect of Junior Stock where the dividend is in the form of the same stock or rights to purchase the same stock as that on which the dividend is being paid;
(vi) distributions of Junior Stock or rights to purchase Junior Stock;
(vii) purchases, redemptions or other acquisitions of Junior Stock for an aggregate amount up to $10,000,000; or
(viii) any dividend in connection with the implementation of a shareholders’ rights or similar plan, or the redemption, exchange or repurchase of any rights under any such. Notwithstanding the foregoingsucceeding sentence, for so long as any shares of Series A R Preferred Stock remain outstanding, if no dividends are not declared and shall be declared, paid, or set aside for payment on any Parity Stock for any period unless full dividends on all outstanding shares of Series R Preferred Stock for the then-current Dividend Period have been paid in full upon or declared and a sum sufficient for the shares of payment thereof set aside. To the extent the Corporation declares dividends on the Series A R Preferred Stock and any Parity Stock, all dividends declared upon shares of Series A Preferred Stock and ▇▇▇▇-▇▇▇▇-▇▇▇▇.13 on any Parity Stock but cannot make full payment of those declared dividends, the Corporation will be declared allocate the dividend payments on a proportional basis so that among the amount holders of dividends declared per share will bear to each other the same ratio that all accrued and unpaid dividends as of the end of the most recent Dividend Payment Period per share shares of Series A R Preferred Stock and accrued and unpaid dividends as of the end of the most recent dividend period per share holders of any Parity Stock bear to each otherthen outstanding where the terms of such Parity Stock provide similar dividend rights. Subject to the provisions foregoing, and not otherwise, such dividends (payable in cash, stock or otherwise) as may be determined by the Board of this Section 4 and Sections 4.11 and 4.12 Directors of the Investment Agreement, dividends may be authorized by the Board, Corporation or any duly authorized committee thereof, and of the Board of Directors of the Corporation may be declared and paid by on the CompanyCommon Stock and any other stock that is Parity Stock or Junior Stock, or any duly authorized committee thereof, on any Junior Stock from time to timetime out of any assets legally available for such payment, and in addition to the rights set forth in this Section 4, the Holders shares of Series R Preferred Stock shall not be entitled to participate in those dividends on an as-converted basis (pursuant to Section 6 without regard to any limitations on convertibility set forth therein) (other than pursuant to the adjustments otherwise provided under Section 11(b) or Section 12(a), as applicable)such dividends.
Appears in 1 contract
Priority of Dividends. So long as any shares of Series A DD Preferred Stock remain outstanding,
(1) no dividend shall be declared and paid or set aside for payment and no distribution shall be declared and made or set aside for payment on any Common Stock, unless all Dividends then and no shares of Common Stock shall be repurchased, redeemed or otherwise acquired for consideration by the Corporation, directly or indirectly, nor shall any monies be paid to or made available for a sinking fund for the redemption of any such Common Stock by the Corporation (other than (i) a dividend payable as in Common Stock or (ii) the acquisition of shares of Common Stock in exchange for, or through application of proceeds of the applicable date sale of, shares of determinationCommon Stock);
(2) no dividend shall be declared and paid or set aside for payment and no distribution shall be declared and made or set aside for payment on any Junior Stock other than Common Stock, whether and no shares of Junior Stock other than Common Stock shall be repurchased, redeemed or not declaredotherwise acquired for consideration by the Corporation, directly or indirectly, nor shall any monies be paid to or made available for a sinking fund for the redemption of any such Junior Stock other than Common Stock by the Corporation (other than (i) a dividend payable solely in shares of Junior Stock, (ii) any dividend in connection with the implementation of a stockholder rights plan, or the redemption or repurchase of any rights under any such plan, (iii) any dividend in the form of stock, warrants, options or other rights where the dividend stock or stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks equally with or junior to such stock, (iv) as a result of a reclassification of Junior Stock other than Common Stock for or into other Junior Stock, (v) the exchange or conversion of one share of Junior Stock other than Common Stock for or into another share of Junior Stock, (vi) through the use of proceeds of a substantially contemporaneous sale of other shares of Junior Stock, (vii) any purchase, redemption or other acquisition of Junior Stock other than Common Stock pursuant to any of the Corporation’s or any of its subsidiaries’ employee, consultant or director incentive or benefit plans or arrangements (including any employment, severance or consulting arrangements) adopted before or after July 20, 2021, (viii) any purchase of fractional interests in shares of Junior Stock other than Common Stock pursuant to the conversion or exchange provisions of such Junior Stock other than Common Stock or the securities being converted or exchanged, (ix) the purchase of Junior Stock other than Common Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with the distribution thereof or (x) the purchase of Junior Stock other than Common Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with market-making or other secondary market activities in the ordinary course of business); and
(3) no shares of Parity Stock will be repurchased, redeemed or otherwise acquired for consideration by the Corporation otherwise than pursuant to pro rata offers to purchase all, or a pro rata portion, of the Series DD Preferred Stock and such Parity Stock during a Dividend Period (other than (i) as a result of a reclassification of Parity Stock for or into other Parity Stock or Junior Stock, (ii) the exchange or conversion of one share of Parity Stock for or into another share of Parity Stock or Junior Stock, (iii) through the use of proceeds of a substantially contemporaneous sale of other shares of Parity Stock or Junior Stock, (iv) any purchase, redemption or other acquisition of Parity Stock pursuant to any of the Corporation’s or any of its subsidiaries’ employee, consultant or director incentive or benefit plans or arrangements (including any employment, severance or consulting arrangements) adopted before or after July 20, 2021, (v) any purchase of fractional interests in shares of Parity Stock pursuant to the conversion or exchange provisions of such Parity Stock or the securities being converted or exchanged, (vi) the purchase of Parity Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with the distribution thereof or (vii) the purchase of Parity Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with market-making or other secondary market activities in the ordinary course of business), unless, in each case, the full dividends for the then-current Dividend Period on all outstanding shares of the Series A DD Preferred Stock have been declared and paid (or in the case of PIK Dividends, added to the Accrued Value), including any accrued and unpaid Dividends on the Series A Preferred Stock that are then in arrears, or have been or contemporaneously are declared and a sum sufficient for the payment of those dividends has been or is set aside for the benefit of the Holders, the Company may not declare any dividend or other cash distribution on, or make any distributions relating to, Junior Stock, or redeem, purchase, acquire (either directly or through any Subsidiary) or make a liquidation payment relating to, any Junior Stock, other than:
(i) purchases, redemptions or other acquisitions of shares of Junior Stock in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of current or former employees, officers, directors or consultants;
(ii) purchases of Junior Stock through the use of the proceeds of a substantially contemporaneous sale of other shares of Junior Stock;
(iii) as a result of an exchange, reclassification or conversion of any class or series of Junior Stock for or into any other class or series of Junior Stock;
(iv) purchases of fractional interests in shares of Junior Stock pursuant aside. Subject to the conversion, reclassification or exchange provisions of such Junior Stock or the security being converted, reclassified or exchanged;
(v) payment of any dividends in respect of Junior Stock where the dividend is in the form of the same stock or rights to purchase the same stock as that on which the dividend is being paid;
(vi) distributions of Junior Stock or rights to purchase Junior Stock;
(vii) purchases, redemptions or other acquisitions of Junior Stock for an aggregate amount up to $10,000,000; or
(viii) any dividend in connection with the implementation of a shareholders’ rights or similar plan, or the redemption, exchange or repurchase of any rights under any such. Notwithstanding the foregoingsucceeding sentence, for so long as any shares of Series A DD Preferred Stock remain outstanding, if no dividends are not declared and shall be declared, paid, or set aside for payment on any Parity Stock for any period unless full dividends on all outstanding shares of Series DD Preferred Stock for the then-current Dividend Period have been paid in full upon or declared and a sum sufficient for the shares of payment thereof set aside. To the extent the Corporation declares dividends on the Series A DD Preferred Stock and any Parity Stock, all dividends declared upon shares of Series A Preferred Stock and ▇▇▇▇-▇▇▇▇-▇▇▇▇.13 on any Parity Stock but cannot make full payment of those declared dividends, the Corporation will be declared allocate the dividend payments on a proportional basis so that among the amount holders of dividends declared per share will bear to each other the same ratio that all accrued and unpaid dividends as of the end of the most recent Dividend Payment Period per share shares of Series A DD Preferred Stock and accrued and unpaid dividends as of the end of the most recent dividend period per share holders of any Parity Stock bear to each otherthen outstanding where the terms of such Parity Stock provide similar dividend rights. Subject to the provisions foregoing, and not otherwise, such dividends (payable in cash, stock or otherwise) as may be determined by the Board of this Section 4 and Sections 4.11 and 4.12 Directors of the Investment Agreement, dividends may be authorized by the Board, Corporation or any duly authorized committee thereof, and of the Board of Directors of the Corporation may be declared and paid by on the CompanyCommon Stock and any other stock that is Parity Stock or Junior Stock, or any duly authorized committee thereof, on any Junior Stock from time to timetime out of any assets legally available for such payment, and in addition to the rights set forth in this Section 4, the Holders shares of Series DD Preferred Stock shall not be entitled to participate in those dividends on an as-converted basis (pursuant to Section 6 without regard to any limitations on convertibility set forth therein) (other than pursuant to the adjustments otherwise provided under Section 11(b) or Section 12(a), as applicable)such dividends.
Appears in 1 contract
Priority of Dividends. So long as any shares of Series A FF Preferred Stock remain outstanding, unless all Dividends then payable as of the applicable date of determination, whether or not declared, on all outstanding shares of Series A Preferred Stock have been :
(1) no dividend shall be declared and paid (or in the case of PIK Dividends, added to the Accrued Value), including any accrued and unpaid Dividends on the Series A Preferred Stock that are then in arrears, or have been or contemporaneously are declared and a sum sufficient for the payment of those dividends has been or is set aside for the benefit of the Holders, the Company may not declare any dividend payment and no distribution shall be declared and made or other cash distribution on, or make any distributions relating to, Junior Stock, or redeem, purchase, acquire (either directly or through any Subsidiary) or make a liquidation set aside for payment relating to, on any Junior Stock, other than:
(i) purchases, redemptions or other acquisitions of and no shares of Junior Stock shall be repurchased, redeemed or otherwise acquired for consideration by the Corporation, directly or indirectly, nor shall any monies be paid to or made available for a sinking fund for the redemption of any such Junior Stock by the Corporation (other than, subject to any other provision of the Restated Certificate of Incorporation, (i) a dividend payable solely in shares of Junior Stock, (ii) any dividend in connection with the implementation of a stockholder rights plan, or the redemption or repurchase of any employment contractrights under any such plan, benefit plan (iii) any dividend in the form of stock, warrants, options or other similar arrangement rights where the dividend stock or stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks equally with or for the benefit junior to such stock, (iv) as a result of current or former employees, officers, directors or consultants;
(ii) purchases a reclassification of Junior Stock for or into other Junior Stock, (v) the exchange or conversion of one share of Junior Stock for or into another share of Junior Stock, (vi) through the use of the proceeds of a substantially contemporaneous sale of other shares of Junior Stock;
, (iiivii) as a result of an exchangeany purchase, reclassification redemption or conversion of any class or series other acquisition of Junior Stock for pursuant to any of the Corporation’s or into any other class of its subsidiaries’ employee, consultant or series of Junior Stock;
director incentive or benefit plans or arrangements (ivincluding any employment, severance or consulting arrangements) purchases adopted before or after July 16, 2024, (viii) any purchase of fractional interests in shares of Junior Stock pursuant to the conversion, reclassification conversion or exchange provisions of such Junior Stock or the security securities being converted, reclassified converted or exchanged;
, (vix) payment of any dividends in respect the purchase of Junior Stock where the dividend is in the form by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the same stock or rights to purchase the same stock as that on which the dividend is being paid;
(vi) distributions of Junior Stock or rights to purchase Junior Stock;
(vii) purchasesCorporation, redemptions or other acquisitions of Junior Stock for an aggregate amount up to $10,000,000; or
(viii) any dividend in connection with the implementation distribution thereof or (x) the purchase of Junior Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with market-making or other secondary market activities in the ordinary course of business); and
(2) no shares of Parity Stock will be repurchased, redeemed or otherwise acquired for consideration by the Corporation otherwise than pursuant to pro rata offers to purchase all, or a pro rata portion, of the Series FF Preferred Stock and such Parity Stock during a Dividend Period (other than (i) as a result of a shareholdersreclassification of Parity Stock for or into other Parity Stock or Junior Stock, (ii) the exchange or conversion of one share of Parity Stock for or into another share of Parity Stock or Junior Stock, (iii) through the use of proceeds of a substantially contemporaneous sale of other shares of Parity Stock or Junior Stock, (iv) any purchase, redemption or other acquisition of Parity Stock pursuant to any of the Corporation’s or any of its subsidiaries’ rights employee, consultant or similar plandirector incentive or benefit plans or arrangements (including any employment, severance or consulting arrangements) adopted before or after July 16, 2024, (v) any purchase of fractional interests in shares of Parity Stock pursuant to the conversion or exchange provisions of such Parity Stock or the securities being converted or exchanged, (vi) the purchase of Parity Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the redemptionCorporation, exchange in connection with the distribution thereof or repurchase (vii) the purchase of Parity Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any rights under any suchother affiliate of the Corporation, in connection with market-making or other secondary market activities in the ordinary course of business), unless, in each case, full dividends on all outstanding shares of Series FF Preferred Stock for the Dividend Period ending on or immediately prior to the dividend payment date or other payment date for such Junior Stock or Parity Stock have been declared and paid or declared and a sum sufficient for payment of those dividends has been set aside. Notwithstanding Subject to the foregoingsucceeding sentence, for so long as any shares of Series A FF Preferred Stock remain outstanding, if no dividends are not declared and shall be declared, paid, or set aside for payment on any Parity Stock for any period unless full dividends on all outstanding shares of Series FF Preferred Stock for the then-current Dividend Period have been paid in full upon or declared and a sum sufficient for the shares of payment thereof set aside. To the extent the Corporation declares dividends on the Series A FF Preferred Stock and any Parity Stock, all dividends declared upon shares of Series A Preferred Stock and ▇▇▇▇-▇▇▇▇-▇▇▇▇.13 on any Parity Stock but cannot make full payment of those declared dividends, the Corporation will be declared allocate the dividend payments on a proportional basis so that among the amount holders of dividends declared per share will bear to each other the same ratio that all accrued and unpaid dividends as of the end of the most recent Dividend Payment Period per share shares of Series A FF Preferred Stock and accrued and unpaid dividends as of the end of the most recent dividend period per share holders of any Parity Stock bear to each otherthen outstanding where the terms of such Parity Stock provide similar dividend rights. Subject to the provisions foregoing, and not otherwise, such dividends (payable in cash, stock or otherwise) as may be determined by the Board of this Section 4 and Sections 4.11 and 4.12 Directors of the Investment Agreement, dividends may be authorized by the Board, Corporation or any duly authorized committee thereof, and of the Board of Directors of the Corporation may be declared and paid by on the CompanyCommon Stock and any other stock that is Parity Stock or Junior Stock, or any duly authorized committee thereof, on any Junior Stock from time to timetime out of any assets legally available for such payment, and in addition to the rights set forth in this Section 4, the Holders shares of Series FF Preferred Stock shall not be entitled to participate in those dividends on an as-converted basis (pursuant to Section 6 without regard to any limitations on convertibility set forth therein) (other than pursuant to the adjustments otherwise provided under Section 11(b) or Section 12(a), as applicable)such dividends.
Appears in 1 contract
Priority of Dividends. So long as any shares of Series A CC Preferred Stock remain outstanding,
(1) no dividend shall be declared and paid or set aside for payment and no distribution shall be declared and made or set aside for payment on any Common Stock, unless all Dividends then and no shares of Common Stock shall be repurchased, redeemed or otherwise acquired for consideration by the Corporation, directly or indirectly, nor shall any monies be paid to or made available for a sinking fund for the redemption of any such Common Stock by the Corporation (other than (i) a dividend payable as in Common Stock or (ii) the acquisition of shares of Common Stock in exchange for, or through application of proceeds of the applicable date sale of, shares of determinationCommon Stock);
(2) no dividend shall be declared and paid or set aside for payment and no distribution shall be declared and made or set aside for payment on any Junior Stock other than Common Stock, whether and no shares of Junior Stock other than Common Stock shall be repurchased, redeemed or not declaredotherwise acquired for consideration by the Corporation, directly or indirectly, nor shall any monies be paid to or made available for a sinking fund for the redemption of any such Junior Stock other than Common Stock by the Corporation (other than (i) a dividend payable solely in shares of Junior Stock, (ii) any dividend in connection with the implementation of a stockholder rights plan, or the redemption or repurchase of any rights under any such plan, (iii) any dividend in the form of stock, warrants, options or other rights where the dividend stock or stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks equally with or junior to such stock, (iv) as a result of a reclassification of Junior Stock other than Common Stock for or into other Junior Stock, (v) the exchange or conversion of one share of Junior Stock other than Common Stock for or into another share of Junior Stock, (vi) through the use of proceeds of a substantially contemporaneous sale of other shares of Junior Stock, (vii) any purchase, redemption or other acquisition of Junior Stock other than Common Stock pursuant to any of the Corporation’s or any of its subsidiaries’ employee, consultant or director incentive or benefit plans or arrangements (including any employment, severance or consulting arrangements) adopted before or after January 25, 2021, (viii) any purchase of fractional interests in shares of Junior Stock other than Common Stock pursuant to the conversion or exchange provisions of such Junior Stock other than Common Stock or the securities being converted or exchanged, (ix) the purchase of Junior Stock other than Common Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with the distribution thereof or (x) the purchase of Junior Stock other than Common Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with market-making or other secondary market activities in the ordinary course of business); and
(3) no shares of Parity Stock will be repurchased, redeemed or otherwise acquired for consideration by the Corporation otherwise than pursuant to pro rata offers to purchase all, or a pro rata portion, of the Series CC Preferred Stock and such Parity Stock during a Dividend Period (other than (i) as a result of a reclassification of Parity Stock for or into other Parity Stock or Junior Stock, (ii) the exchange or conversion of one share of Parity Stock for or into another share of Parity Stock or Junior Stock, (iii) through the use of proceeds of a substantially contemporaneous sale of other shares of Parity Stock or Junior Stock, (iv) any purchase, redemption or other acquisition of Parity Stock pursuant to any of the Corporation’s or any of its subsidiaries’ employee, consultant or director incentive or benefit plans or arrangements (including any employment, severance or consulting arrangements) adopted before or after January 25, 2021, (v) any purchase of fractional interests in shares of Parity Stock pursuant to the conversion or exchange provisions of such Parity Stock or the securities being converted or exchanged, (vi) the purchase of Parity Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with the distribution thereof or (vii) the purchase of Parity Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with market-making or other secondary market activities in the ordinary course of business), unless, in each case, the full dividends for the then-current Dividend Period on all outstanding shares of the Series A CC Preferred Stock have been declared and paid (or in the case of PIK Dividends, added to the Accrued Value), including any accrued and unpaid Dividends on the Series A Preferred Stock that are then in arrears, or have been or contemporaneously are declared and a sum sufficient for the payment of those dividends has been or is set aside for the benefit of the Holders, the Company may not declare any dividend or other cash distribution on, or make any distributions relating to, Junior Stock, or redeem, purchase, acquire (either directly or through any Subsidiary) or make a liquidation payment relating to, any Junior Stock, other than:
(i) purchases, redemptions or other acquisitions of shares of Junior Stock in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of current or former employees, officers, directors or consultants;
(ii) purchases of Junior Stock through the use of the proceeds of a substantially contemporaneous sale of other shares of Junior Stock;
(iii) as a result of an exchange, reclassification or conversion of any class or series of Junior Stock for or into any other class or series of Junior Stock;
(iv) purchases of fractional interests in shares of Junior Stock pursuant aside. Subject to the conversion, reclassification or exchange provisions of such Junior Stock or the security being converted, reclassified or exchanged;
(v) payment of any dividends in respect of Junior Stock where the dividend is in the form of the same stock or rights to purchase the same stock as that on which the dividend is being paid;
(vi) distributions of Junior Stock or rights to purchase Junior Stock;
(vii) purchases, redemptions or other acquisitions of Junior Stock for an aggregate amount up to $10,000,000; or
(viii) any dividend in connection with the implementation of a shareholders’ rights or similar plan, or the redemption, exchange or repurchase of any rights under any such. Notwithstanding the foregoingsucceeding sentence, for so long as any shares of Series A CC Preferred Stock remain outstanding, if no dividends are not declared and shall be declared, paid, or set aside for payment on any Parity Stock for any period unless full dividends on all outstanding shares of Series CC Preferred Stock for the then-current Dividend Period have been paid in full upon or declared and a sum sufficient for the shares of payment thereof set aside. To the extent the Corporation declares dividends on the Series A CC Preferred Stock and any Parity Stock, all dividends declared upon shares of Series A Preferred Stock and ▇▇▇▇-▇▇▇▇-▇▇▇▇.13 on any Parity Stock but cannot make full payment of those declared dividends, the Corporation will be declared allocate the dividend payments on a proportional basis so that among the amount holders of dividends declared per share will bear to each other the same ratio that all accrued and unpaid dividends as of the end of the most recent Dividend Payment Period per share shares of Series A CC Preferred Stock and accrued and unpaid dividends as of the end of the most recent dividend period per share holders of any Parity Stock bear to each otherthen outstanding where the terms of such Parity Stock provide similar dividend rights. Subject to the provisions foregoing, and not otherwise, such dividends (payable in cash, stock or otherwise) as may be determined by the Board of this Section 4 and Sections 4.11 and 4.12 Directors of the Investment Agreement, dividends may be authorized by the Board, Corporation or any duly authorized committee thereof, and of the Board of Directors of the Corporation may be declared and paid by on the CompanyCommon Stock and any other stock that is Parity Stock or Junior Stock, or any duly authorized committee thereof, on any Junior Stock from time to timetime out of any assets legally available for such payment, and in addition to the rights set forth in this Section 4, the Holders shares of Series CC Preferred Stock shall not be entitled to participate in those dividends on an as-converted basis (pursuant to Section 6 without regard to any limitations on convertibility set forth therein) (other than pursuant to the adjustments otherwise provided under Section 11(b) or Section 12(a), as applicable)such dividends.
Appears in 1 contract
Priority of Dividends. So long as any shares of Series A B Preferred Stock remain outstanding, following March 31, 2021, unless all full Dividends then payable as of the applicable date of determination, whether or not declared, on all outstanding shares of Series A B Preferred Stock that have accrued from and including March 31, 2021 have been declared and paid (or in the case of PIK Dividends, added to the Accrued Value), including any accrued and unpaid Dividends on the Series A Preferred Stock that are then in arrearscash, or have been or contemporaneously are declared and a sum sufficient for the payment of those dividends Dividends has been or is set aside for the benefit of the Holders, the Company may not declare any cash dividend or other cash distribution on, or make any cash distributions relating to, Junior Stock or Parity Stock, or redeem, purchase, acquire (either directly or through any Subsidiary) or make a liquidation payment relating to, any Junior Stock or Parity Stock, other than:
(i) purchases, redemptions or other acquisitions of shares of Junior Stock in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of current or former employees, officers, directors or consultants;
(ii) purchases of Junior Stock through the use of the proceeds of a substantially contemporaneous sale of other shares of Junior Stock;
(iii) as a result of an exchange, reclassification exchange or conversion of any class or series of Parity Stock or Junior Stock for or into any other class or series of Parity Stock (in the case of Parity Stock) or Junior Stock (in the case of Parity Stock or Junior Stock);
(iv) purchases of fractional interests in shares of Parity Stock or Junior Stock pursuant to the conversion, reclassification conversion or exchange provisions of such Parity Stock or Junior Stock or the security being converted, reclassified converted or exchanged;
(v) payment of any dividends in respect of Junior Stock where the dividend is in the form of the same stock or rights to purchase the same stock as that on which the dividend is being paid;
(vi) distributions of Junior Stock or rights to purchase Junior Stock;
(vii) purchases, redemptions or other acquisitions of Junior Stock for an aggregate amount up to $10,000,000; or
(viiivii) any dividend in connection with the implementation of a shareholders’ rights or similar plan, or the redemption, exchange redemption or repurchase of any rights under any suchsuch plan. Notwithstanding the foregoing, for so long as any shares of Series A B Preferred Stock remain outstanding, if dividends are not declared and paid in full upon the shares of Series A B Preferred Stock and any Parity Stock, all dividends declared upon shares of Series A B Preferred Stock and ▇▇▇▇-▇▇▇▇-▇▇▇▇.13 any Parity Stock will be declared on a proportional basis so that the amount of dividends declared per share will bear to each other the same ratio that all accrued and unpaid dividends as of the end of the most recent Dividend Payment Period per share of Series A B Preferred Stock and accrued and unpaid dividends as of the end of the most recent dividend period per share of any Parity Stock bear to each other. Subject to the provisions of this Section 4 and Sections 4.11 and 4.12 of the Investment Agreement4, dividends may be authorized by the Board, or any duly authorized committee thereof, and declared and paid by the Company, or any duly authorized committee thereof, on any Junior Stock and Parity Stock from time to time, time and in addition to the rights set forth in this Section 4, the Holders shall will not be entitled to participate in those dividends on an as-converted basis (pursuant to Section 6 without regard to any limitations on convertibility set forth therein) (other than pursuant to the adjustments otherwise provided under Section 11(b11(a) or Section 12(a), as applicable).
Appears in 1 contract
Sources: Investment Agreement (Coty Inc.)
Priority of Dividends. So long as any shares of Series A N Preferred Stock remain outstanding,
(1) no dividend shall be declared and paid or set aside for payment and no distribution shall be declared and made or set aside for payment on any Common Stock, unless all Dividends then and no shares of Common Stock shall be repurchased, redeemed or otherwise acquired for consideration by the Corporation, directly or indirectly, nor shall any monies be paid to or made available for a sinking fund for the redemption of any such Common Stock by the Corporation (other than (i) a dividend payable as in Common Stock or (ii) the acquisition of shares of Common Stock in exchange for, or through application of proceeds of the applicable date sale of, shares of determinationCommon Stock);
(2) no dividend shall be declared and paid or set aside for payment and no distribution shall be declared and made or set aside for payment on any Junior Stock other than Common Stock, whether and no shares of Junior Stock other than Common Stock shall be repurchased, redeemed or not declaredotherwise acquired for consideration by the Corporation, directly or indirectly, nor shall any monies be paid to or made available for a sinking fund for the redemption of any such Junior Stock other than Common Stock by the Corporation (other than (i) a dividend payable solely in shares of Junior Stock, (ii) any dividend in connection with the implementation of a stockholder rights plan, or the redemption or repurchase of any rights under any such plan, (iii) any dividend in the form of stock, warrants, options or other rights where the dividend stock or stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks equally with or junior to such stock, (iv) as a result of a reclassification of Junior Stock other than Common Stock for or into other Junior Stock, (v) the exchange or conversion of one share of Junior Stock other than Common Stock for or into another share of Junior Stock, (vi) through the use of proceeds of a substantially contemporaneous sale of other shares of Junior Stock, (vii) any purchase, redemption or other acquisition of Junior Stock other than Common Stock pursuant to any of the Corporation’s or any of its subsidiaries’ employee, consultant or director incentive or benefit plans or arrangements (including any employment, severance or consulting arrangements) adopted before or after August 9, 2012, (viii) any purchase of fractional interests in shares of Junior Stock other than Common Stock pursuant to the conversion or exchange provisions of such Junior Stock other than Common Stock or the securities being converted or exchanged, (ix) the purchase of Junior Stock other than Common Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with the distribution thereof or (x) the purchase of Junior Stock other than Common Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with market-making or other secondary market activities in the ordinary course of business); and
(3) no shares of Parity Stock will be repurchased, redeemed or otherwise acquired for consideration by the Corporation otherwise than pursuant to pro rata offers to purchase all, or a pro rata portion, of the Series N Preferred Stock and such Parity Stock during a Dividend Period (other than (i) as a result of a reclassification of Parity Stock for or into other Parity Stock or Junior Stock, (ii) the exchange or conversion of one share of Parity Stock for or into another share of Parity Stock or Junior Stock, (iii) through the use of proceeds of a substantially contemporaneous sale of other shares of Parity Stock or Junior Stock, (iv) any purchase, redemption or other acquisition of Parity Stock pursuant to any of the Corporation’s or any of its subsidiaries’ employee, consultant or director incentive or benefit plans or arrangements (including any employment, severance or consulting arrangements) adopted before or after August 9, 2012, (v) any purchase of fractional interests in shares of Parity Stock pursuant to the conversion or exchange provisions of such Parity Stock or the securities being converted or exchanged, (vi) the purchase of Parity Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with the distribution thereof or (vii) the purchase of Parity Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with market-making or other secondary market activities in the ordinary course of business), unless, in each case, the full dividends for the then-current Dividend Period on all outstanding shares of the Series A N Preferred Stock have been declared and paid (or in the case of PIK Dividends, added to the Accrued Value), including any accrued and unpaid Dividends on the Series A Preferred Stock that are then in arrears, or have been or contemporaneously are declared and a sum sufficient for the payment of those dividends has been or is set aside for the benefit of the Holders, the Company may not declare any dividend or other cash distribution on, or make any distributions relating to, Junior Stock, or redeem, purchase, acquire (either directly or through any Subsidiary) or make a liquidation payment relating to, any Junior Stock, other than:
(i) purchases, redemptions or other acquisitions of shares of Junior Stock in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of current or former employees, officers, directors or consultants;
(ii) purchases of Junior Stock through the use of the proceeds of a substantially contemporaneous sale of other shares of Junior Stock;
(iii) as a result of an exchange, reclassification or conversion of any class or series of Junior Stock for or into any other class or series of Junior Stock;
(iv) purchases of fractional interests in shares of Junior Stock pursuant aside. Subject to the conversion, reclassification or exchange provisions of such Junior Stock or the security being converted, reclassified or exchanged;
(v) payment of any dividends in respect of Junior Stock where the dividend is in the form of the same stock or rights to purchase the same stock as that on which the dividend is being paid;
(vi) distributions of Junior Stock or rights to purchase Junior Stock;
(vii) purchases, redemptions or other acquisitions of Junior Stock for an aggregate amount up to $10,000,000; or
(viii) any dividend in connection with the implementation of a shareholders’ rights or similar plan, or the redemption, exchange or repurchase of any rights under any such. Notwithstanding the foregoingsucceeding sentence, for so long as any shares of Series A N Preferred Stock remain outstanding, if no dividends are not declared and shall be declared, paid, or set aside for payment on any Parity Stock for any period unless full dividends on all outstanding shares of Series N Preferred Stock for the then-current Dividend Period have been paid in full upon or declared and a sum sufficient for the shares of payment thereof set aside. To the extent the Corporation declares dividends on the Series A N Preferred Stock and any Parity Stock, all dividends declared upon shares of Series A Preferred Stock and ▇▇▇▇-▇▇▇▇-▇▇▇▇.13 on any Parity Stock but cannot make full payment of those declared dividends, the Corporation will be declared allocate the dividend payments on a proportional basis so that among the amount holders of dividends declared per share will bear to each other the same ratio that all accrued and unpaid dividends as of the end of the most recent Dividend Payment Period per share shares of Series A N Preferred Stock and accrued and unpaid dividends as of the end of the most recent dividend period per share holders of any Parity Stock bear to each otherthen outstanding where the terms of such Parity Stock provide similar dividend rights. Subject to the provisions foregoing, and not otherwise, such dividends (payable in cash, stock or otherwise) as may be determined by the Board of this Section 4 and Sections 4.11 and 4.12 Directors of the Investment Agreement, dividends may be authorized by the Board, Corporation or any duly authorized committee thereof, and of the board of Directors of the Corporation may be declared and paid by on the CompanyCommon Stock and any other stock that is Parity Stock or Junior Stock, or any duly authorized committee thereof, on any Junior Stock from time to timetime out of any assets legally available for such payment, and in addition to the rights set forth in this Section 4, the Holders shares of Series N Preferred Stock shall not be entitled to participate in those dividends on an as-converted basis (pursuant to Section 6 without regard to any limitations on convertibility set forth therein) (other than pursuant to the adjustments otherwise provided under Section 11(b) or Section 12(a), as applicable)such dividends.
Appears in 1 contract
Priority of Dividends. So long as any shares of Series A P Preferred Stock remain outstanding,
(1) no dividend shall be declared and paid or set aside for payment and no distribution shall be declared and made or set aside for payment on any Common Stock, unless all Dividends then and no shares of Common Stock shall be repurchased, redeemed or otherwise acquired for consideration by the Corporation, directly or indirectly, nor shall any monies be paid to or made available for a sinking fund for the redemption of any such Common Stock by the Corporation (other than (i) a dividend payable as in Common Stock or (ii) the acquisition of shares of Common Stock in exchange for, or through application of proceeds of the applicable date sale of, shares of determinationCommon Stock);
(2) no dividend shall be declared and paid or set aside for payment and no distribution shall be declared and made or set aside for payment on any Junior Stock other than Common Stock, whether and no shares of Junior Stock other than Common Stock shall be repurchased, redeemed or not declaredotherwise acquired for consideration by the Corporation, directly or indirectly, nor shall any monies be paid to or made available for a sinking fund for the redemption of any such Junior Stock other than Common Stock by the Corporation (other than (i) a dividend payable solely in shares of Junior Stock, (ii) any dividend in connection with the implementation of a stockholder rights plan, or the redemption or repurchase of any rights under any such plan, (iii) any dividend in the form of stock, warrants, options or other rights where the dividend stock or stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks equally with or junior to such stock, (iv) as a result of a reclassification of Junior Stock other than Common Stock for or into other Junior Stock, (v) the exchange or conversion of one share of Junior Stock other than Common Stock for or into another share of Junior Stock, (vi) through the use of proceeds of a substantially contemporaneous sale of other shares of Junior Stock, (vii) any purchase, redemption or other acquisition of Junior Stock other than Common Stock pursuant to any of the Corporation’s or any of its subsidiaries’ employee, consultant or director incentive or benefit plans or arrangements (including any employment, severance or consulting arrangements) adopted before or after March 15, 2013, (viii) any purchase of fractional interests in shares of Junior Stock other than Common Stock pursuant to the conversion or exchange provisions of such Junior Stock other than Common Stock or the securities being converted or exchanged, (ix) the purchase of Junior Stock other than Common Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with the distribution thereof or (x) the purchase of Junior Stock other than Common Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with market-making or other secondary market activities in the ordinary course of business); and
(3) no shares of Parity Stock will be repurchased, redeemed or otherwise acquired for consideration by the Corporation otherwise than pursuant to pro rata offers to purchase all, or a pro rata portion, of the Series P Preferred Stock and such Parity Stock during a Dividend Period (other than (i) as a result of a reclassification of Parity Stock for or into other Parity Stock or Junior Stock, (ii) the exchange or conversion of one share of Parity Stock for or into another share of Parity Stock or Junior Stock, (iii) through the use of proceeds of a substantially contemporaneous sale of other shares of Parity Stock or Junior Stock, (iv) any purchase, redemption or other acquisition of Parity Stock pursuant to any of the Corporation’s or any of its subsidiaries’ employee, consultant or director incentive or benefit plans or arrangements (including any employment, severance or consulting arrangements) adopted before or after March 15, 2013, (v) any purchase of fractional interests in shares of Parity Stock pursuant to the conversion or exchange provisions of such Parity Stock or the securities being converted or exchanged, (vi) the purchase of Parity Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with the distribution thereof or (vii) the purchase of Parity Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with market-making or other secondary market activities in the ordinary course of business), unless, in each case, the full dividends for the then-current Dividend Period on all outstanding shares of the Series A P Preferred Stock have been declared and paid (or in the case of PIK Dividends, added to the Accrued Value), including any accrued and unpaid Dividends on the Series A Preferred Stock that are then in arrears, or have been or contemporaneously are declared and a sum sufficient for the payment of those dividends has been or is set aside for the benefit of the Holders, the Company may not declare any dividend or other cash distribution on, or make any distributions relating to, Junior Stock, or redeem, purchase, acquire (either directly or through any Subsidiary) or make a liquidation payment relating to, any Junior Stock, other than:
(i) purchases, redemptions or other acquisitions of shares of Junior Stock in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of current or former employees, officers, directors or consultants;
(ii) purchases of Junior Stock through the use of the proceeds of a substantially contemporaneous sale of other shares of Junior Stock;
(iii) as a result of an exchange, reclassification or conversion of any class or series of Junior Stock for or into any other class or series of Junior Stock;
(iv) purchases of fractional interests in shares of Junior Stock pursuant aside. Subject to the conversion, reclassification or exchange provisions of such Junior Stock or the security being converted, reclassified or exchanged;
(v) payment of any dividends in respect of Junior Stock where the dividend is in the form of the same stock or rights to purchase the same stock as that on which the dividend is being paid;
(vi) distributions of Junior Stock or rights to purchase Junior Stock;
(vii) purchases, redemptions or other acquisitions of Junior Stock for an aggregate amount up to $10,000,000; or
(viii) any dividend in connection with the implementation of a shareholders’ rights or similar plan, or the redemption, exchange or repurchase of any rights under any such. Notwithstanding the foregoingsucceeding sentence, for so long as any shares of Series A P Preferred Stock remain outstanding, if no dividends are not declared and shall be declared, paid, or set aside for payment on any Parity Stock for any period unless full dividends on all outstanding shares of Series P Preferred Stock for the then-current Dividend Period have been paid in full upon or declared and a sum sufficient for the shares of payment thereof set aside. To the extent the Corporation declares dividends on the Series A P Preferred Stock and any Parity Stock, all dividends declared upon shares of Series A Preferred Stock and ▇▇▇▇-▇▇▇▇-▇▇▇▇.13 on any Parity Stock but cannot make full payment of those declared dividends, the Corporation will be declared allocate the dividend payments on a proportional basis so that among the amount holders of dividends declared per share will bear to each other the same ratio that all accrued and unpaid dividends as of the end of the most recent Dividend Payment Period per share shares of Series A P Preferred Stock and accrued and unpaid dividends as of the end of the most recent dividend period per share holders of any Parity Stock bear to each otherthen outstanding where the terms of such Parity Stock provide similar dividend rights. Subject to the provisions foregoing, and not otherwise, such dividends (payable in cash, stock or otherwise) as may be determined by the Board of this Section 4 and Sections 4.11 and 4.12 Directors of the Investment Agreement, dividends may be authorized by the Board, Corporation or any duly authorized committee thereof, and of the board of Directors of the Corporation may be declared and paid by on the CompanyCommon Stock and any other stock that is Parity Stock or Junior Stock, or any duly authorized committee thereof, on any Junior Stock from time to timetime out of any assets legally available for such payment, and in addition to the rights set forth in this Section 4, the Holders shares of Series P Preferred Stock shall not be entitled to participate in those dividends on an as-converted basis (pursuant to Section 6 without regard to any limitations on convertibility set forth therein) (other than pursuant to the adjustments otherwise provided under Section 11(b) or Section 12(a), as applicable)such dividends.
Appears in 1 contract
Priority of Dividends. So long as any shares of Series A S Preferred Stock remain outstanding,
(1) no dividend shall be declared and paid or set aside for payment and no distribution shall be declared and made or set aside for payment on any Common Stock, unless all Dividends then and no shares of Common Stock shall be repurchased, redeemed or otherwise acquired for consideration by the Corporation, directly or indirectly, nor shall any monies be paid to or made available for a sinking fund for the redemption of any such Common Stock by the Corporation (other than (i) a dividend payable as in Common Stock or (ii) the acquisition of shares of Common Stock in exchange for, or through application of proceeds of the applicable date sale of, shares of determinationCommon Stock);
(2) no dividend shall be declared and paid or set aside for payment and no distribution shall be declared and made or set aside for payment on any Junior Stock other than Common Stock, whether and no shares of Junior Stock other than Common Stock shall be repurchased, redeemed or not declaredotherwise acquired for consideration by the Corporation, directly or indirectly, nor shall any monies be paid to or made available for a sinking fund for the redemption of any such Junior Stock other than Common Stock by the Corporation (other than (i) a dividend payable solely in shares of Junior Stock, (ii) any dividend in connection with the implementation of a stockholder rights plan, or the redemption or repurchase of any rights under any such plan, (iii) any dividend in the form of stock, warrants, options or other rights where the dividend stock or stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks equally with or junior to such stock, (iv) as a result of a reclassification of Junior Stock other than Common Stock for or into other Junior Stock, (v) the exchange or conversion of one share of Junior Stock other than Common Stock for or into another share of Junior Stock, (vi) through the use of proceeds of a substantially contemporaneous sale of other shares of Junior Stock, (vii) any purchase, redemption or other acquisition of Junior Stock other than Common Stock pursuant to any of the Corporation’s or any of its subsidiaries’ employee, consultant or director incentive or benefit plans or arrangements (including any employment, severance or consulting arrangements) adopted before or after April 14, 2014, (viii) any purchase of fractional interests in shares of Junior Stock other than Common Stock pursuant to the conversion or exchange provisions of such Junior Stock other than Common Stock or the securities being converted or exchanged, (ix) the purchase of Junior Stock other than Common Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with the distribution thereof or (x) the purchase of Junior Stock other than Common Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with market-making or other secondary market activities in the ordinary course of business); and
(3) no shares of Parity Stock will be repurchased, redeemed or otherwise acquired for consideration by the Corporation otherwise than pursuant to pro rata offers to purchase all, or a pro rata portion, of the Series S Preferred Stock and such Parity Stock during a Dividend Period (other than (i) as a result of a reclassification of Parity Stock for or into other Parity Stock or Junior Stock, (ii) the exchange or conversion of one share of Parity Stock for or into another share of Parity Stock or Junior Stock, (iii) through the use of proceeds of a substantially contemporaneous sale of other shares of Parity Stock or Junior Stock, (iv) any purchase, redemption or other acquisition of Parity Stock pursuant to any of the Corporation’s or any of its subsidiaries’ employee, consultant or director incentive or benefit plans or arrangements (including any employment, severance or consulting arrangements) adopted before or after April 14, 2014, (v) any purchase of fractional interests in shares of Parity Stock pursuant to the conversion or exchange provisions of such Parity Stock or the securities being converted or exchanged, (vi) the purchase of Parity Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with the distribution thereof or (vii) the purchase of Parity Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with market-making or other secondary market activities in the ordinary course of business), unless, in each case, the full dividends for the then-current Dividend Period on all outstanding shares of the Series A S Preferred Stock have been declared and paid (or in the case of PIK Dividends, added to the Accrued Value), including any accrued and unpaid Dividends on the Series A Preferred Stock that are then in arrears, or have been or contemporaneously are declared and a sum sufficient for the payment of those dividends has been or is set aside for the benefit of the Holders, the Company may not declare any dividend or other cash distribution on, or make any distributions relating to, Junior Stock, or redeem, purchase, acquire (either directly or through any Subsidiary) or make a liquidation payment relating to, any Junior Stock, other than:
(i) purchases, redemptions or other acquisitions of shares of Junior Stock in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of current or former employees, officers, directors or consultants;
(ii) purchases of Junior Stock through the use of the proceeds of a substantially contemporaneous sale of other shares of Junior Stock;
(iii) as a result of an exchange, reclassification or conversion of any class or series of Junior Stock for or into any other class or series of Junior Stock;
(iv) purchases of fractional interests in shares of Junior Stock pursuant aside. Subject to the conversion, reclassification or exchange provisions of such Junior Stock or the security being converted, reclassified or exchanged;
(v) payment of any dividends in respect of Junior Stock where the dividend is in the form of the same stock or rights to purchase the same stock as that on which the dividend is being paid;
(vi) distributions of Junior Stock or rights to purchase Junior Stock;
(vii) purchases, redemptions or other acquisitions of Junior Stock for an aggregate amount up to $10,000,000; or
(viii) any dividend in connection with the implementation of a shareholders’ rights or similar plan, or the redemption, exchange or repurchase of any rights under any such. Notwithstanding the foregoingsucceeding sentence, for so long as any shares of Series A S Preferred Stock remain outstanding, if no dividends are not declared and shall be declared, paid, or set aside for payment on any Parity Stock for any period unless full dividends on all outstanding shares of Series S Preferred Stock for the then-current Dividend Period have been paid in full upon or declared and a sum sufficient for the shares of payment thereof set aside. To the extent the Corporation declares dividends on the Series A S Preferred Stock and any Parity Stock, all dividends declared upon shares of Series A Preferred Stock and ▇▇▇▇-▇▇▇▇-▇▇▇▇.13 on any Parity Stock but cannot make full payment of those declared dividends, the Corporation will be declared allocate the dividend payments on a proportional basis so that among the amount holders of dividends declared per share will bear to each other the same ratio that all accrued and unpaid dividends as of the end of the most recent Dividend Payment Period per share shares of Series A S Preferred Stock and accrued and unpaid dividends as of the end of the most recent dividend period per share holders of any Parity Stock bear to each otherthen outstanding where the terms of such Parity Stock provide similar dividend rights. Subject to the provisions foregoing, and not otherwise, such dividends (payable in cash, stock or otherwise) as may be determined by the Board of this Section 4 and Sections 4.11 and 4.12 Directors of the Investment Agreement, dividends may be authorized by the Board, Corporation or any duly authorized committee thereof, and of the Board of Directors of the Corporation may be declared and paid by on the CompanyCommon Stock and any other stock that is Parity Stock or Junior Stock, or any duly authorized committee thereof, on any Junior Stock from time to timetime out of any assets legally available for such payment, and in addition to the rights set forth in this Section 4, the Holders shares of Series S Preferred Stock shall not be entitled to participate in those dividends on an as-converted basis (pursuant to Section 6 without regard to any limitations on convertibility set forth therein) (other than pursuant to the adjustments otherwise provided under Section 11(b) or Section 12(a), as applicable)such dividends.
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Priority of Dividends. So long as any shares of Series A Q Preferred Stock remain outstanding,
(1) no dividend shall be declared and paid or set aside for payment and no distribution shall be declared and made or set aside for payment on any Common Stock, unless all Dividends then and no shares of Common Stock shall be repurchased, redeemed or otherwise acquired for consideration by the Corporation, directly or indirectly, nor shall any monies be paid to or made available for a sinking fund for the redemption of any such Common Stock by the Corporation (other than (i) a dividend payable as in Common Stock or (ii) the acquisition of shares of Common Stock in exchange for, or through application of proceeds of the applicable date sale of, shares of determinationCommon Stock);
(2) no dividend shall be declared and paid or set aside for payment and no distribution shall be declared and made or set aside for payment on any Junior Stock other than Common Stock, whether and no shares of Junior Stock other than Common Stock shall be repurchased, redeemed or not declaredotherwise acquired for consideration by the Corporation, directly or indirectly, nor shall any monies be paid to or made available for a sinking fund for the redemption of any such Junior Stock other than Common Stock by the Corporation (other than (i) a dividend payable solely in shares of Junior Stock, (ii) any dividend in connection with the implementation of a stockholder rights plan, or the redemption or repurchase of any rights under any such plan, (iii) any dividend in the form of stock, warrants, options or other rights where the dividend stock or stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks equally with or junior to such stock, (iv) as a result of a reclassification of Junior Stock other than Common Stock for or into other Junior Stock, (v) the exchange or conversion of one share of Junior Stock other than Common Stock for or into another share of Junior Stock, (vi) through the use of proceeds of a substantially contemporaneous sale of other shares of Junior Stock, (vii) any purchase, redemption or other acquisition of Junior Stock other than Common Stock pursuant to any of the Corporation’s or any of its subsidiaries’ employee, consultant or director incentive or benefit plans or arrangements (including any employment, severance or consulting arrangements) adopted before or after July 15, 2013, (viii) any purchase of fractional interests in shares of Junior Stock other than Common Stock pursuant to the conversion or exchange provisions of such Junior Stock other than Common Stock or the securities being converted or exchanged, (ix) the purchase of Junior Stock other than Common Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with the distribution thereof or (x) the purchase of Junior Stock other than Common Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with market-making or other secondary market activities in the ordinary course of business); and
(3) no shares of Parity Stock will be repurchased, redeemed or otherwise acquired for consideration by the Corporation otherwise than pursuant to pro rata offers to purchase all, or a pro rata portion, of the Series Q Preferred Stock and such Parity Stock during a Dividend Period (other than (i) as a result of a reclassification of Parity Stock for or into other Parity Stock or Junior Stock, (ii) the exchange or conversion of one share of Parity Stock for or into another share of Parity Stock or Junior Stock, (iii) through the use of proceeds of a substantially contemporaneous sale of other shares of Parity Stock or Junior Stock, (iv) any purchase, redemption or other acquisition of Parity Stock pursuant to any of the Corporation’s or any of its subsidiaries’ employee, consultant or director incentive or benefit plans or arrangements (including any employment, severance or consulting arrangements) adopted before or after July 15, 2013, (v) any purchase of fractional interests in shares of Parity Stock pursuant to the conversion or exchange provisions of such Parity Stock or the securities being converted or exchanged, (vi) the purchase of Parity Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with the distribution thereof or (vii) the purchase of Parity Stock by ▇▇▇▇▇ Fargo Securities, LLC, or any other affiliate of the Corporation, in connection with market-making or other secondary market activities in the ordinary course of business), unless, in each case, the full dividends for the then-current Dividend Period on all outstanding shares of the Series A Q Preferred Stock have been declared and paid (or in the case of PIK Dividends, added to the Accrued Value), including any accrued and unpaid Dividends on the Series A Preferred Stock that are then in arrears, or have been or contemporaneously are declared and a sum sufficient for the payment of those dividends has been or is set aside for the benefit of the Holders, the Company may not declare any dividend or other cash distribution on, or make any distributions relating to, Junior Stock, or redeem, purchase, acquire (either directly or through any Subsidiary) or make a liquidation payment relating to, any Junior Stock, other than:
(i) purchases, redemptions or other acquisitions of shares of Junior Stock in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of current or former employees, officers, directors or consultants;
(ii) purchases of Junior Stock through the use of the proceeds of a substantially contemporaneous sale of other shares of Junior Stock;
(iii) as a result of an exchange, reclassification or conversion of any class or series of Junior Stock for or into any other class or series of Junior Stock;
(iv) purchases of fractional interests in shares of Junior Stock pursuant aside. Subject to the conversion, reclassification or exchange provisions of such Junior Stock or the security being converted, reclassified or exchanged;
(v) payment of any dividends in respect of Junior Stock where the dividend is in the form of the same stock or rights to purchase the same stock as that on which the dividend is being paid;
(vi) distributions of Junior Stock or rights to purchase Junior Stock;
(vii) purchases, redemptions or other acquisitions of Junior Stock for an aggregate amount up to $10,000,000; or
(viii) any dividend in connection with the implementation of a shareholders’ rights or similar plan, or the redemption, exchange or repurchase of any rights under any such. Notwithstanding the foregoingsucceeding sentence, for so long as any shares of Series A Q Preferred Stock remain outstanding, if no dividends are not declared and shall be declared, paid, or set aside for payment on any Parity Stock for any period unless full dividends on all outstanding shares of Series Q Preferred Stock for the then-current Dividend Period have been paid in full upon or declared and a sum sufficient for the shares of payment thereof set aside. To the extent the Corporation declares dividends on the Series A Q Preferred Stock and any Parity Stock, all dividends declared upon shares of Series A Preferred Stock and ▇▇▇▇-▇▇▇▇-▇▇▇▇.13 on any Parity Stock but cannot make full payment of those declared dividends, the Corporation will be declared allocate the dividend payments on a proportional basis so that among the amount holders of dividends declared per share will bear to each other the same ratio that all accrued and unpaid dividends as of the end of the most recent Dividend Payment Period per share shares of Series A Q Preferred Stock and accrued and unpaid dividends as of the end of the most recent dividend period per share holders of any Parity Stock bear to each otherthen outstanding where the terms of such Parity Stock provide similar dividend rights. Subject to the provisions foregoing, and not otherwise, such dividends (payable in cash, stock or otherwise) as may be determined by the Board of this Section 4 and Sections 4.11 and 4.12 Directors of the Investment Agreement, dividends may be authorized by the Board, Corporation or any duly authorized committee thereof, and of the Board of Directors of the Corporation may be declared and paid by on the CompanyCommon Stock and any other stock that is Parity Stock or Junior Stock, or any duly authorized committee thereof, on any Junior Stock from time to timetime out of any assets legally available for such payment, and in addition to the rights set forth in this Section 4, the Holders shares of Series Q Preferred Stock shall not be entitled to participate in those dividends on an as-converted basis (pursuant to Section 6 without regard to any limitations on convertibility set forth therein) (other than pursuant to the adjustments otherwise provided under Section 11(b) or Section 12(a), as applicable)such dividends.
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