Common use of Distributions, Repurchases of Stock, Etc Clause in Contracts

Distributions, Repurchases of Stock, Etc. The Borrower shall not, and shall not permit any Guarantor to, declare or make, directly or indirectly, any Restricted Payment, except: (i) any Subsidiary may pay cash dividends or distributions to holders of its outstanding Capital Stock on a pro rata basis; (ii) the payment of cash in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock of the Borrower or such Subsidiary; (iii) the repurchase, redemption, defeasance or other acquisition or retirement for value of Capital Stock of the Borrower held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates) of the Borrower or any Restricted Subsidiary, in each case, upon their bankruptcy or petition for bankruptcy, death, disability, retirement, severance or termination of employment or service or any other repurchase event set forth pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or similar agreement or benefit plan of any kind; provided that the aggregate cash consideration paid for all such redemptions shall not exceed $5,000,000 during any calendar year (it being understood, however, that unused amounts permitted to be paid pursuant to this proviso are available to be carried over to the immediately succeeding calendar year); (iv) repurchases of Capital Stock deemed to occur upon the exercise, conversion or exchange of stock options, warrants, other rights to purchase Capital Stock or other convertible or exchangeable securities if such Capital Stock represents all or a portion of the exercise price thereof or upon the vesting of restricted stock, restricted stock units or similar equity incentives to satisfy tax withholding or similar tax obligations with respect thereto; (v) the payment of withholding or similar taxes payable by any future, present or former employee, director or officer (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) in connection with any repurchases of Capital Stock or the exercise of stock options; and (vi) so long as (x) no Default has occurred and is continuing or would result therefrom and (y) the Borrower shall be in compliance with the covenants under Section 7.27 on a pro forma basis after giving effect thereto, any Restricted Payments.

Distributions, Repurchases of Stock, Etc. The Borrower shall not, and shall not permit any Guarantor to, declare or make, directly or indirectly, any Restricted Payment, except: (i) any Subsidiary may pay cash dividends or distributions to holders of its outstanding Capital Stock on a pro rata basis; (ii) the payment of cash in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock of the Borrower or such Subsidiary; (iii) the repurchase, redemption, defeasance or other acquisition or retirement for value of Capital Stock of the Borrower held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates) of the Borrower or any Restricted Subsidiary, in each case, upon their bankruptcy or petition for bankruptcy, death, disability, retirement, severance or termination of employment or service or any other repurchase event set forth pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or similar agreement or benefit plan of any kind; provided that the aggregate cash consideration paid for all such redemptions shall not exceed $5,000,000 during any calendar year (it being understood, however, that unused amounts permitted to be paid pursuant to this proviso are available to be carried over to the immediately succeeding calendar year); (iv) repurchases of Capital Stock deemed to occur upon the exercise, conversion or exchange of stock options, warrants, other rights to purchase Capital Stock or other convertible or exchangeable securities if such Capital Stock represents all or a portion of the exercise price thereof or upon the vesting of restricted stock, restricted stock units or similar equity incentives to satisfy tax withholding or similar tax obligations with respect thereto; (v) the payment of withholding or similar taxes payable by any future, present or former employee, director or officer (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) in connection with any repurchases of Capital Stock or the exercise of stock options; and (vi) so long as (x) no Default has occurred and is continuing or would result therefrom therefrom, Restricted Payments in an aggregate amount during any period of four consecutive fiscal quarters (each such four-quarter period, a “Dividend Period”) not to exceed the greater of (x) 20% of Consolidated Net Income, if positive, for the period of four consecutive fiscal quarters ending with the latest fiscal quarter ended prior to the applicable Dividend Period (e.g., if the Dividend Period is the four-quarter period ending December 31, 2019, the period for which Consolidated Net Income is measured in this subclause (x) would be the four-quarter period ended September 30, 2019) and (y) (a) 20% of cumulative Consolidated Net Income, if positive, for the Borrower shall be period (taken as one accounting period) beginning on October 1, 2018 and ending on the last day of the latest fiscal quarter ended prior to the applicable Dividend Period (e.g., if the Dividend Period is the four-quarter period ending December 31, 2019, the period for which cumulative Consolidated Net Income is measured in compliance with the covenants this subclause (y) would end on September 30, 2019) less (b) Restricted Payments previously made under Section 7.27 on a pro forma basis after giving effect thereto, any Restricted Paymentsthis clause (vi).