Common use of Dividends in Cash or in Kind Clause in Contracts

Dividends in Cash or in Kind. Subject to Corporation being authorized to pay dividends pursuant to the requirements of the Corporations Act, each Holder shall be entitled to receive, and the Corporation shall pay, cumulative preferential dividends out of funds legally available on the Stated Value represented by such Holder’s Series A Preference Shares at the rate (as a percentage of such Stated Value) of 8% per annum, payable semi-annually on June 30 and December 31, beginning on the first such date after the Original Issue Date, and on each Conversion Date (with respect only to Series A Preference Shares being converted) (each such date, a “Dividend Payment Date”) (if any Dividend Payment Date is not a Trading Day, the applicable payment shall be due on the next succeeding Trading Day) in cash, in duly authorized, validly issued, fully paid and non-assessable shares of Common Stock, or a combination thereof, in each case as provided in the next sentence (the amount to be paid in shares of Common Stock, the “Dividend Share Amount”). The form of dividend payments to each Holder shall be determined in the following order of priority: (i) if funds are legally available for the payment of dividends and the Corporation is authorized to pay a dividend under the Corporations Act and any of the Equity Conditions have not been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment Date (the “Dividend Notice Period”), in cash only; (ii) if funds are legally available for the payment of dividends and the Corporation is authorized to pay a dividend under the Corporations Act and all of the Equity Conditions have been met during the Dividend Notice Period, at the sole election of the Corporation, in cash or shares of Common Stock which shall be valued solely for such purpose at the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date; and (iii) if funds are not legally available for the payment of dividends and the Corporation is not authorized to pay a dividend under the Corporations Act for the payment of dividends, then such dividends shall accrue to the next Dividend Payment Date. The Holders shall have the same rights and remedies with respect to the delivery of any such shares as if such shares were being issued pursuant to Section 6. Dividends may be franked or unfranked for Australian tax law purposes.

Dividends in Cash or in Kind. Subject to Corporation being authorized to pay dividends pursuant to the requirements of the Corporations Act, each Holder Holders shall be entitled to receive, and the Corporation shall pay, cumulative preferential dividends out of funds legally available on the Stated Value represented by such Holder’s Series A Preference Shares at the rate per share (as a percentage of such the Stated ValueValue per share) of 810% per annumannum (subject to increase pursuant to Section 9(b)), payable semi-annually quarterly on June 30 January 1, April 1, July 1 and December 31October 1, beginning on the first such date after the Original Issue Date, Date and on each Conversion Date (with respect only to Series A Preference Shares Preferred Stock being converted) (each such date, a “Dividend Payment Date”) (if any Dividend Payment Date is not a Trading Day, the applicable payment shall be due on the next succeeding Trading Day) in cash, or at the Corporation’s option, in duly authorized, validly issued, fully paid and non-assessable shares of Common StockStock as set forth in this Section 3(a), or a combination thereof, in each case as provided in the next sentence thereof (the amount to be paid in shares of Common Stock, the “Dividend Share Amount”). The form of dividend payments to each Holder shall be determined in the following order of priority: (i) if funds are legally available for the payment of dividends and the Corporation is authorized to pay a dividend under the Corporations Act and any of the Equity Conditions have not been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment Date (the “Dividend Notice Period”)Date, in cash only; (ii) if funds are legally available for the payment of dividends and the Corporation is authorized to pay a dividend under the Corporations Act and all of the Equity Conditions have been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Notice PeriodPayment Date, at the sole election of the Corporation, in cash or shares of Common Stock which shall be valued solely for such purpose (A) if not then effectively registered for resale by the Holder, at 90% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date and (B) if then effectively registered for resale by the Holder, at 100% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date; (iii) if funds are not legally available for the payment of dividends and the Equity Conditions have been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment Date, in shares of Common Stock which shall be valued solely for such purpose (A) if not then effectively registered for resale by the Holder, at 90% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date and (B) if then effectively registered for resale by the Holder, at 100% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date; and (iiiiv) if funds are not legally available for the payment of dividends and the Corporation is Equity Conditions have not authorized been met during the 20 consecutive Trading Days immediately prior to pay a dividend under the Corporations Act for applicable Dividend Payment Date, then, at the payment election of dividendssuch Holder, then (1) such dividends shall accrue to the next Dividend Payment Date, (2) shall be accreted to, and increase, the outstanding Stated Value, or (3) in shares of Common Stock which shall be valued solely for such purpose (A) if not then effectively registered for resale by the Holder, at 90% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date and (B) if then effectively registered for resale by the Holder, at 100% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date. The Holders shall have the same rights and remedies with respect to the delivery of any such shares as if such shares were being issued pursuant to Section 6. On the Closing Date, after giving effect to the receipt by the Company of the proceeds from the sale of Preferred Stock under the Purchase Agreement, the Corporation shall have notified the Holders whether or not it may legally pay cash dividends as of the Closing Date. The Corporation shall promptly notify the Holders at any time the Corporation shall become able or unable, as the case may be, to legally pay cash dividends. If at any time the Corporation has the right to pay dividends in cash or Common Stock, the Corporation must provide the Holders with at least 20 Trading Days’ notice of its election to pay a regularly scheduled dividend in Common Stock and whether or not a registration statement relating thereto is then effective (the Corporation may indicate in such notice that the election contained in such notice shall continue for later periods until revised by a subsequent notice). Dividends may on the Preferred Stock shall be franked calculated on the basis of a 360-day year, consisting of twelve 30 calendar day periods, shall accrue daily commencing on the Original Issue Date, and shall be deemed to accrue from such date whether or unfranked not earned or declared and whether or not there are profits, surplus or other funds of the Corporation legally available for Australian tax the payment of dividends. Except as otherwise provided herein, if at any time the Corporation pays dividends partially in cash and partially in shares, then such payment shall be distributed ratably among the Holders based upon the number of shares of Preferred Stock held by each Holder on such Dividend Payment Date. Any dividends, whether paid in cash or shares of Common Stock, that are not paid within three Trading Days following a Dividend Payment Date shall continue to accrue and shall entail a late fee, which must be paid in cash, at the rate of 18% per annum or the lesser rate permitted by applicable law purposes(such fees to accrue daily, from the Dividend Payment Date through and including the date of payment). If at any time the Corporation delivers a notice to the Holders of its election to pay the dividends in shares of Common Stock, the Corporation shall timely file a prospectus supplement pursuant to Rule 424 disclosing such election.

Dividends in Cash or in Kind. Subject to Corporation being authorized to pay dividends pursuant to the requirements of the Corporations Act, each Holder Holders shall be entitled to receive, and the Corporation shall pay, cumulative preferential dividends out of funds legally available on the Stated Value represented by such Holder’s Series A Preference Shares at the rate per share (as a percentage of such the Stated ValueValue per share) of 8% per annumannum (subject to increase pursuant to Section 9(b)), payable semi-annually on June 30 and December 31March 1 of each year, beginning on the first such date after the Original Issue DateMarch 1, 2007 and on each Conversion Date (with respect only to Series A Preference Shares being convertedexcept that, if such date is not a Trading Day, the payment date shall be the next succeeding Trading Day) (each such date, a “"Dividend Payment Date”) (if any Dividend Payment Date is not a Trading Day, the applicable payment shall be due on the next succeeding Trading Day") in cash, in cash or duly authorized, validly issued, fully paid and non-assessable shares of Common StockStock as set forth in this Section 3(a), or a combination thereof, in each case as provided in the next sentence thereof (the amount to be paid in shares of Common Stock, the “"Dividend Share Amount”"). The form of dividend payments to each Holder shall be determined in the following order of priority: (i) if funds are legally available for the payment of dividends and the Corporation is authorized to pay a dividend under the Corporations Act and any of the Equity Conditions have not been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment Date (the “Dividend Notice Period”), in cash only; (ii) if funds are legally available for the payment of dividends and the Corporation is authorized to pay a dividend under the Corporations Act and all of the Equity Conditions have been met during the Dividend Notice Period, at the sole election of the Corporation, in cash or shares of Common Stock which shall be valued solely for such purpose at 90% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date; and (iii) if funds are not legally available for . The form of dividend payments shall be at the payment discretion of dividends and the Corporation, provided that the Corporation is not authorized may elect to pay a provide such dividend under in Common Stock only if the Corporations Act for the payment of dividends, then such dividends shall accrue to the next Dividend Payment DateEquity Conditions are met. The Holders shall have the same rights and remedies with respect to the delivery of any such shares as if such shares were being issued pursuant to Section 6. On the Closing Date the Corporation shall have notified the Holders whether or not it may legally pay cash dividends as of the Closing Date. The Corporation shall promptly notify the Holders at any time the Corporation shall become able or unable, as the case may be, to legally pay cash dividends. If at any time the Corporation has the right to pay dividends in cash or Common Stock, the Corporation must provide the Holder with at least 20 Trading Days' notice of its election to pay a regularly scheduled dividend in Common Stock (the Corporation may indicate in such notice that the election contained in such notice shall continue for later periods until revised by a subsequent notice). Dividends may on the Preferred Stock shall be franked calculated on the basis of a 360-day year, shall accrue daily commencing on the Original Issue Date, and shall be deemed to accrue from such date whether or unfranked not earned or declared and whether or not there are profits, surplus or other funds of the Corporation legally available for Australian tax the payment of dividends. Except as otherwise provided herein, if at any time the Corporation pays dividends partially in cash and partially in shares, then such payment shall be distributed ratably among the Holders based upon the number of shares of Preferred Stock held by each Holder on such Dividend Payment Date. Any dividends, whether paid in cash or shares of Common Stock, that are not paid within three Trading Days following a Dividend Payment Date shall continue to accrue and shall entail a late fee, which must be paid in cash, at the rate of 18% per annum or the lesser rate permitted by applicable law purposes(such fees to accrue daily, from the Dividend Payment Date through and including the date of payment). If at any time the Corporation delivers a notice to the Holders of its election to pay the dividends in shares of Common Stock, the Corporation shall timely file a prospectus supplement pursuant to Rule 424 disclosing such election.

Dividends in Cash or in Kind. Subject to Corporation being authorized to pay dividends pursuant to the requirements of the Corporations Act, each Holder Holders shall be entitled to receive, and the Corporation shall pay, cumulative preferential dividends out of funds legally available on the Stated Value represented by such Holder’s Series A Preference Shares at the rate per share (as a percentage of such the Stated ValueValue per share) of 86% per annum, which rate shall increase by 1% on the date of each anniversary of the First Closing Date up to a maximum rate of 10% per annum. Such dividends shall be payable semi-annually on June 30 and December 31, beginning on the first such date after the Original Issue Date, Date and on each Conversion Date (with respect only to Series A Preference Shares C Preferred Stock being converted) (each such date, a “Dividend Payment Date”) (if any Dividend Payment Date is not a Trading Day, the applicable payment shall be due on the next succeeding Trading Day) in cashcash out of legally available funds, or at the Corporation’s option and only after Shareholder Approval has been obtained, in duly authorized, validly issued, fully paid and non-assessable shares of Common StockStock as set forth in this Section 3(a), or a combination thereof, in each case as provided in the next sentence thereof (the dollar amount to be paid in shares of Common Stock, the “Dividend Share Amount”). The form of dividend payments to each Holder shall be determined in the following order of priority: (i) if funds are legally available for the payment of dividends and the Corporation is authorized to pay a dividend under the Corporations Act and any of the Equity Conditions have not been met during the 20 5 consecutive Trading Days immediately prior to the applicable Dividend Payment Date or Conversion Date (the “Dividend Notice Period”), in cash only; , (ii) if funds are legally available for the payment of dividends and the Corporation is authorized to pay a dividend under the Corporations Act and all of the Equity Conditions have been met during the Dividend Notice Period, at the sole election of the Corporation, in any combination of cash or shares of Common Stock which shall be valued solely for such purpose at 80% of the average of the VWAPs for the 20 5 consecutive Trading Days ending on the Trading Day that is immediately prior to the applicable Dividend Payment Date or Conversion Date; and , (iii) if funds are not legally available for the payment of dividends and the Corporation Equity Conditions have been met during the Dividend Notice Period, in shares of Common Stock which shall be valued solely for such purpose at 80% of the average of the VWAPs for the 5 consecutive Trading Days ending on the Trading Day that is immediately prior to the applicable Dividend Payment Date or Conversion Date, (iv) if funds are not authorized to pay a dividend under the Corporations Act legally available for the payment of dividendsdividends and the Equity Condition relating to an effective Conversion Shares Registration Statement has been waived by such Holder, then as to such Holder only, in unregistered shares of Common Stock (but only if Shareholder Approval has been obtained) which shall be valued solely for such purpose at 80% of the average of the VWAPs for the 5 consecutive Trading Days ending on the Trading Day that is immediately prior to the applicable Dividend Payment Date or Conversion Date, and (v) if funds are not legally available for the payment of dividends and the Equity Conditions have not been met during the Dividend Notice Period, then, at the election of such Holder, such dividends shall accrue to the next applicable Dividend Payment Dateor Conversion Date or shall be accreted to, and increase, the outstanding Stated Value. In the event the Corporation notifies the Holders that it will pay dividends in whole or in part in shares of Common Stock based on its good faith and reasonable belief that the Corporation it will be in compliance with the Equity Conditions during the Dividend Notice Period, and the Corporation determines on or before the first day of the dividend notice period that it will not be in compliance with the Equity Conditions, it shall so notify the Holders and each holder may elect to receive Common Stock or cash. The Holders shall have the same rights and remedies with respect to the delivery of any such shares as if such shares were being issued pursuant to Section 6. Dividends may be franked or unfranked for Australian tax law purposes.

Dividends in Cash or in Kind. Subject to Corporation being authorized to pay dividends pursuant to the requirements of the Corporations Act, each Holder Holders shall be entitled to receive, and the Corporation Company shall pay, cumulative preferential dividends out of funds legally available on the Stated Value represented by such Holder’s Series A Preference Shares at the rate per share (as a percentage of such the Stated ValueValue per share) of 8% per annumannum (subject to increase pursuant to Section 9(b)), payable semi-annually quarterly on June 30 January 1, April 1, July 1 and December 31October 1, beginning on the first such date after the Original Issue Date, on each Full Forced Conversion Date, on each Limited Forced Conversion Date, and on each Conversion Date (with respect only to shares of Series A Preference Shares B Preferred Stock being converted) (each such date, a “"Dividend Payment Date”") (if any Dividend Payment Date is not a Trading Day, the applicable payment shall be due on the next succeeding Trading Day) in cash, or at the Company's option, following Shareholder Approval (including, for the avoidance of doubt, any Shareholder Approval that may be required in connection with (A) Nasdaq Listing Rule 5635 in connection with issuances of Common Stock equal to or in excess of 20% of the number of shares of Common Stock outstanding, or voting power equal to in excess of 20% of the voting power outstanding, or (b) dividend payments to Nasdaq Insiders to comply with Nasdaq Listing Rule 5635(c)), in duly authorized, validly issued, fully paid and non-assessable shares of Common StockStock as set forth in this Section 3(a), or a combination thereof, in each case as provided in the next sentence thereof (the dollar amount to be paid in shares of Common Stock, the “"Dividend Share Amount”"). The form of dividend payments to each Holder shall be determined in the following order of priority: (i) if funds are legally available for the payment of dividends and the Corporation is authorized to pay a dividend under the Corporations Act and any of the Equity Conditions have not been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment Date (the “"Dividend Notice Period”"), in cash only; , (ii) if funds are legally available for the payment of dividends and the Corporation is authorized to pay a dividend under the Corporations Act and all of the Equity Conditions have been met during the Dividend Notice Period, at the sole election of the CorporationCompany, in cash or shares of Common Stock (following Shareholder Approval), which shall be valued solely for such purpose at the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date; and Conversion Rate, (iii) if funds are not legally available for the payment of dividends and the Corporation is Equity Conditions have been met during the Dividend Notice Period, in shares of Common Stock (following Shareholder Approval), which shall be valued at the Dividend Conversion Rate, (iv) if funds are not authorized to pay a dividend under the Corporations Act legally available for the payment of dividendsdividends and the Equity Condition relating to an effective Conversion Shares Registration Statement has been waived by such Holder, then as to such Holder only, in unregistered shares of Common Stock (following Shareholder Approval) which shall be valued at the Dividend Conversion Rate, and (v) if funds are not legally available for the payment of dividends and the Equity Conditions have not been met during the Dividend Notice Period, then, at the election of such Holder, such dividends shall accrue to the next Dividend Payment Date or shall be accreted to, and increase, the outstanding Stated Value. In addition, as a condition to paying dividends in shares of Common Stock, as to such Dividend Payment Date, prior to such Dividend Notice Period (but not more than five (5) Trading Days prior to the commencement of such Dividend Notice Period), the Company shall have delivered to each Holder's account with The Depository Trust Company a number of shares of Common Stock to be applied against such Dividend Share Amount equal to the quotient of (x) the applicable Dividend Share Amount divided by (y) the Dividend Conversion Rate, assuming for such purposes that the Dividend Payment Date is the Trading Day immediately prior to the commencement of the Dividend Notice Period (the "Dividend Conversion Shares"). The Holders shall have the same rights and remedies with respect to the delivery of any such shares as if such shares were being issued pursuant to Section 6. Dividends may be franked or unfranked for Australian tax law purposes.

Dividends in Cash or in Kind. Subject to Corporation being authorized to pay dividends pursuant to the requirements of the Corporations Act, each Holder Holders shall be entitled to receive, and the Corporation shall pay, cumulative preferential dividends out of funds legally available on the Stated Value represented by such Holder’s Series A Preference Shares at the rate per share (as a percentage of such the Stated ValueValue per share) of 8% per annumannum (subject to increase pursuant to Section 9(b)), payable semi-annually quarterly on June 30 January 1, April 1, July 1 and December 31October 1, beginning on the first such date after the Original Issue Date, Date and on each Conversion Date (with respect only to Series A Preference Shares Preferred Stock being converted) (each such date, a “Dividend Payment Date”) (if any Dividend Payment Date is not a Trading Day, the applicable payment shall be due on the next succeeding Trading Day) in cash, or at the Corporation’s option, subject to Shareholder Approval, in duly authorized, validly issued, fully paid and non-assessable shares of Common StockStock as set forth in this Section 3(a), or a combination thereof, in each case as provided in the next sentence thereof (the dollar amount to be paid in shares of Common Stock, the “Dividend Share Amount”). The form of dividend payments to each Holder shall be determined in the following order of priority: (i) if funds are legally available for the payment of dividends and the Corporation is authorized to pay a dividend under the Corporations Act and any of the Equity Conditions have not been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment Date (the “Dividend Notice Period”), in cash only; , (ii) if funds are legally available for the payment of dividends and the Corporation is authorized to pay a dividend under the Corporations Act and all of the Equity Conditions have been met during the Dividend Notice Period, at the sole election of the Corporation, in cash or shares of Common Stock (subject to Shareholder Approval), which shall be valued solely for such purpose at the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date; and Conversion Rate, (iii) if funds are not legally available for the payment of dividends and the Corporation is Equity Conditions have been met during the Dividend Notice Period, in shares of Common Stock (subject to Shareholder Approval), which shall be valued at the Dividend Conversion Rate, (iv) if funds are not authorized to pay a dividend under the Corporations Act legally available for the payment of dividendsdividends and the Equity Condition relating to an effective Conversion Shares Registration Statement has been waived by such Holder, then as to such Holder only, in unregistered shares of Common Stock (subject to Shareholder Approval) which shall be valued at the Dividend Conversion Rate, and (v) if funds are not legally available for the payment of dividends and the Equity Conditions have not been met during the Dividend Notice Period, then, at the election of such Holder, such dividends shall accrue to the next Dividend Payment Date or shall be accreted to, and increase, the outstanding Stated Value. In addition, as a condition to paying dividends in shares of Common Stock, as to such Dividend Payment Date, prior to such Dividend Notice Period (but not more than five (5) Trading Days prior to the commencement of such Dividend Notice Period), the Corporation shall have delivered to each Holder’s account with The Depository Trust Company a number of shares of Common Stock to be applied against such Dividend Share Amount equal to the quotient of (x) the applicable Dividend Share Amount divided by (y) the Dividend Conversion Rate, assuming for such purposes that the Dividend Payment Date is the Trading Day immediately prior to the commencement of the Dividend Notice Period (the “Dividend Conversion Shares”). The Holders shall have the same rights and remedies with respect to the delivery of any such shares as if such shares were being issued pursuant to Section 6. Dividends may be franked or unfranked for Australian tax law purposes.

Dividends in Cash or in Kind. Subject to Corporation being authorized to pay dividends pursuant to Other than in the requirements case of shares of Dividend Payment Preferred Stock, the Corporations Act, each Holder Holders shall be entitled to receive, and the Corporation shall pay, cumulative preferential dividends out of funds legally available on the Stated Value represented by such Holder’s Series A Preference Shares at the rate per share (as a percentage of such the Stated ValueValue per share) of 8% per annum, payable semi-annually quarterly on June 30 January 1, April 1, July 1 and December 31October 1, beginning on the first such date after the Original Issue Date, Date and on each Conversion Date (with respect only to Series A Preference Shares being convertedexcept that, if such date is not a Trading Day, the payment date shall be the next succeeding Trading Day) (each such date, a “Dividend Payment Date”) in (if any Dividend Payment Date is not a Trading Day, the applicable payment shall be due on the next succeeding Trading Dayi) in cash, in (ii) duly authorized, validly issued, fully paid and non-assessable shares of Common Stock, or a combination thereof, Stock as set forth in each case as provided in the next sentence this Section 3(a) (the amount to be paid in shares of Common Stock, the “Dividend Share Amount”), (iii) duly authorized, validly issued, fully paid and non-assessable shares of Series D Preferred Stock (such shares of Series D Preferred Stock issued in satisfaction of dividends hereunder, the “Dividend Payment Preferred Stock”) or (iv) a combination of (i), (ii) and (iii). The form of dividend payments to each Holder shall be determined in the following order of priority: (i) if funds are legally available for the payment of dividends and the Corporation is authorized to pay a dividend under the Corporations Act and any of the Equity Conditions have not been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment Date (the “Dividend Notice Period”)Date, in cash only; (ii) if funds are legally available for the payment of dividends and the Corporation is authorized to pay a dividend under the Corporations Act and all of the Equity Conditions have been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Notice PeriodPayment Date, at the sole election of the Corporation, in cash or shares of Common Stock which shall be valued solely for such purpose at 95% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date; and (iii) if funds are not legally available for the payment of dividends and the Corporation Equity Conditions have been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment Date, in shares of Common Stock which shall be valued solely for such purpose at 95% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date; (iv) if funds are not authorized to pay a dividend under the Corporations Act legally available for the payment of dividendsdividends and the Equity Conditions relating to an effective Conversion Shares Registration Statement has been waived by such Holder, as to such Holder only, in unregistered shares of Common Stock which shall be valued solely for such purpose at 95% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date; (v) at the option of the Corporation, regardless of whether or not the “Equity Conditions” are then satisfied, in shares of Dividend Payment Preferred Stock having a Stated Value equal to the aggregate cash value of such dividend payment; and (vi) if funds are not legally available for the payment of dividends and the Equity Conditions have not been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment Date, then such dividends shall accrue to the next Dividend Payment Date. The Holders shall have the same rights and remedies with respect to the delivery of any such shares as if such shares were being issued pursuant to Section 6. Upon the request of the Corporation, each Holder shall provide to the Corporation, a customary Rule 144 representation letter relating to all shares of Common Stock to be issued as payment in kind dividends. On the Closing Date the Corporation shall have notified the Holders whether or not it may legally pay cash dividends as of the Closing Date. Absent prior written notice from the Corporation as provided for below and subject to the Equity Conditions being met, the default method of payment shall be in shares of Common Stock. In the event the Corporation determines to pay in Dividend Payment Preferred Stock or cash or the Corporation determines that the Equity Conditions are not met, the Corporation shall provide at least 20 Trading Day’s prior notice to the Holder of such its election to pay in Dividend Payment Preferred Stock or cash; provided, that the failure to notify the Holders that the Equity Conditions are not met shall not constitute a “Trigger Event” under Section 9(a) hereof. Dividends on the Series D Preferred Stock shall be calculated on the basis of a 360-day year, shall accrue daily commencing on the Original Issue Date, and shall be deemed to accrue from such date whether or not earned or declared and whether or not there are profits, surplus or other funds of the Corporation legally available for the payment of dividends. Except as otherwise provided herein, if at any time the Corporation pays dividends partially in cash and partially in shares, then such payment shall be distributed ratably among the Holders based upon the number of shares of Series D Preferred Stock held by each Holder on such Dividend Payment Date. Any dividends, whether paid in cash, Dividend Payment Preferred Stock or shares of Common Stock, that are not paid within five Trading Days following a Dividend Payment Date shall continue to accrue and shall entail a late fee, which must be paid in cash, at the rate of 18% per annum or the lesser rate permitted by applicable law (such fees to accrue daily, from the Dividend Payment Date through and including the date of payment); provided that any such late fee which may have accrued prior to June 25, 2010 is irrevocably waived by all Holders. Dividend Payment Preferred Stock shall have the same rights, privileges, preferences as the other Series D Preferred Stock, except that such Dividend Payment Preferred Stock shall not be franked entitled to, nor accrue, any dividends pursuant to this Section 3(a) and each certificate evidencing any shares of Dividend Payment Preferred Stock shall bear a legend substantially to the following effect (in addition to any other legends required by law or unfranked by contract): “THE SHARES OF SERIES D PREFERRED STOCK REPRESENTED BY THIS CERTIFICATE WERE ISSUED AS “DIVIDEND PAYMENT PREFERRED STOCK” UNDER THE TERMS OF CERTIFICATE OF DESIGNATION OF PREFERENCES, RIGHTS AND LIMITATIONS OF SERIES D 8% CONVERTIBLE PREFERRED STOCK, FILED WITH SECRETARY OF STATE OF THE STATE OF DELAWARE ON SEPTEMBER 15, 2008, AS MAY BE AMENDED (THE “CERTIFICATE OF DESIGNATION”) AND, AS SUCH, DO NOT ENTITLE THE HOLDER HERETO TO ANY DIVIDENDS PURSUANT TO SECTION 3(A) OF THE CERTIFICATE OF DESIGNATION. If at any time, the Corporation determines that creation of a separate series of Preferred Stock is necessary or advisable for Australian tax law purposespurposes of issuing shares of Dividend Payment Preferred Stock pursuant to this Section 3(a), the Corporation shall be authorized, without any further consent or approval of the Holders, to create such additional series of Preferred Stock (the “Series D-1 Preferred Stock”) having the same rights, privileges, preferences as the Series D Preferred Stock, except that such Series D-1 Preferred Stock shall not be entitled to, nor accrue, any dividends pursuant to this Section 3(a). Upon creation of such series of Series D-1 Preferred Stock, all references herein to Dividend Payment Preferred Stock shall be deemed to refer to such Series D-1 Preferred Stock and no shares of Series D-1 Preferred Stock shall be issued by the Corporation for any purposes other than the payment of dividends to the Holders, at the option of the Corporation, under this Section 3(a) in the form of Dividend Payment Preferred Stock.

Dividends in Cash or in Kind. Subject to Corporation being authorized to pay dividends pursuant to the requirements of the Corporations Act, each Holder Holders shall be entitled to receive, and the Corporation shall paypay through the ten-year anniversary of the applicable Original Issue Date, cumulative preferential dividends out of funds legally available on the Stated Value represented by such Holder’s Series A Preference Shares at the rate per share (as a percentage of such the Stated ValueValue per share) of 817.38% per annum, payable semi-annually on June 30 April 15 and December 31October 15, beginning on the first such date after the applicable Original Issue Date, Date and on each Conversion Date (with respect only to Series A Preference Shares Preferred Stock being converted) (each such date, a “Dividend Payment Date”) (if any Dividend Payment Date is not a Trading Day, the applicable payment shall be due on the next succeeding Trading Day) in cash, or at the Corporation’s option, in duly authorized, validly issued, fully paid and non-assessable shares of Common StockStock as set forth in this Section 3(a), or a combination thereof, in each case as provided in the next sentence thereof (the dollar amount to be paid in shares of Common Stock, the “Dividend Share Amount”) provided, however, upon the conversion of Preferred Stock prior to the ten-year anniversary of the applicable Original Issue Date, the Corporation shall also pay to the Holders of the Preferred Stock so converted cash, or at the Corporation’s option, in duly authorized, validly issued, fully paid and non-assessable shares of Common Stock as set forth in this Section 3(a), or a combination thereof, with respect to the Preferred Stock so converted in an amount equal to $1,738 per $1,000 of Stated Value of the Preferred Stock, less the amount of all prior semi-annual dividends paid on such converted Preferred Stock before the relevant Conversion Date (the “Make-Whole Payment”). The form of dividend payments and Make-Whole Payments to each Holder shall be determined in the following order of priority: (i) if funds are legally available for the payment of dividends and the Corporation is authorized to pay a dividend under the Corporations Act and any of the Equity Conditions have not been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment Date (the “Dividend Notice Period”), in cash only; , (ii) if funds are legally available for the payment of dividends and the Corporation is authorized to pay a dividend under the Corporations Act and all of the Equity Conditions have been met during the Dividend Notice Period, at the sole election of the Corporation, in cash or and/or shares of Common Stock which shall be valued solely for such purpose at the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date; and Conversion Rate, (iii) if funds are not legally available for the payment of dividends and the Corporation is Equity Conditions have been met during the Dividend Notice Period, in shares of Common Stock which shall be valued at the Dividend Conversion Rate, and (iv) if funds are not authorized to pay a dividend under the Corporations Act legally available for the payment of dividendsdividends and the Equity Conditions have not been met during the Dividend Notice Period, then then, at the election of such Holder, such dividends shall accrue to the next Dividend Payment Date or shall be accreted to, and increase, the outstanding Stated Value. If the Corporation will pay any dividend in the form of cash, it shall provide each Holder with notice of the same not later than the first day of the month of such Dividend Payment Date. The Holders shall have For the same rights avoidance of doubt, the total amount of dividends and remedies with respect to any Make-Whole Payment payable by the delivery of any such shares as if such shares were being issued Corporation pursuant to this Section 6. Dividends may be franked or unfranked for Australian tax law purposes3(a) shall not exceed $1,738 per $1,000 of Stated Value of the Preferred Stock.

Dividends in Cash or in Kind. Subject to Corporation being authorized to pay dividends pursuant to From and after the requirements Original Issue Date, the Holder of the Corporations Act, each Holder share of Preferred Stock shall be entitled to receive, and the Corporation shall pay, receive cumulative preferential dividends out of funds legally available on the Stated Value represented by such Holder’s Series A Preference Shares at the rate per share (as a percentage of the Stated Value of such Stated Valueshare) of 8% six and one-half percent (6.50%) per annum, payable semi-annually quarterly in arrears on March 15, June 30 15, September 15 and December 3115 of each calendar year, beginning on the first such date after the applicable Original Issue Date, and on each Conversion Date (with respect only to Series A Preference Shares being converted) (each such date, a “Dividend Payment Date”) (); provided that if any Dividend Payment Date is not a Trading Business Day, then (x) the applicable payment shall be due on the next succeeding Trading Business Day; (y) no interest or additional dividends will accrue as a result thereof; and (z) for purposes of interpreting this Certificate of Designations, if paid in accordance with clause (x), such payment will be deemed to have been paid on such Dividend Payment Date, to the Holder of such share as of the Close of Business on the immediately preceding March 15, June 15, September 15 and December 15, respectively (each, a “Regular Record Date”). Any such payment may be made at the Corporation’s option (as determined by the Board of Directors) (1) in cashcash paid from legally available funds, in (2) by issuing duly authorized, validly issued, fully paid and non-assessable shares of Common Stock, or a combination thereof, in each case as provided in the next sentence (Preferred Stock having an aggregate initial Stated Value equal to the amount to be paid of the payment being made in shares of Common Preferred Stock (provided, that, at the Corporation’s election, in lieu of issuing new shares of Preferred Stock pursuant to this clause (2), the Corporation may increase the Stated Value of each share of Preferred Stock by the amount of the payment being made in shares of Preferred Stock, the “Dividend Share Amount”). The form of dividend payments to each Holder shall be determined in the following order of priority: which case (ix) if funds are legally available for the payment of dividends and the Corporation is authorized may place any applicable notations on the certificates representing such shares and (y) for purposes of interpreting this Certificate of Designations, such amount will be deemed to pay a dividend under have been paid by issuing shares of Preferred Stock), or (3) by any combination of clause (1) and (2) above; provided that to the Corporations Act and extent not paid on the Dividend Payment Date, dividends on any share of the Equity Conditions have not been met during the 20 consecutive Trading Days immediately prior to Preferred Stock shall accumulate from the applicable Dividend Payment Date (whether or not declared by the “Dividend Notice Period”), in cash only; (ii) if funds are legally available for the payment Board of dividends Directors and the Corporation is authorized to pay a dividend under the Corporations Act and all of the Equity Conditions have been met during the Dividend Notice Period, at the sole election of the Corporation, in cash shall remain accumulated until paid pursuant hereto or shares of Common Stock which shall be valued solely for such purpose at the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date; and (iii) if funds are not legally available for the payment of dividends and the Corporation is not authorized to pay a dividend under the Corporations Act for the payment of dividends, then such dividends shall accrue to the next Dividend Payment Date. The Holders shall have the same rights and remedies with respect to the delivery of any such shares as if such shares were being issued converted pursuant to Section 6. Dividends may All accumulated dividends on the Preferred Stock shall be franked prior and in preference to any dividend on any Junior Securities and shall be fully declared and paid before any dividends are declared and paid, or unfranked any other distributions or redemptions are made, on any Junior Securities other than to (i) declare or pay any dividend or distribution payable on the Common Stock or any other Junior Securities in shares of Common Stock or any other Junior Securities, (ii) purchases of Common Stock or other Junior Securities pursuant to a contractually binding requirement to buy Common Stock or other Junior Securities existing as of the last Dividend Payment Date for Australian tax law purposeswhich all accumulated and unpaid dividends on the Preferred Stock were paid in accordance with this Certificate of Designations, including under a contractually binding stock repurchase plan, (iii) repurchase Common Stock held by directors, officers, employees or consultants of the Corporation or its Subsidiaries upon termination of their employment or services pursuant to agreements providing for such repurchase and approved by the Board of Directors, (iv) purchases of fractional interests in shares of Common Stock or other Junior Securities pursuant to the conversion or exchange provisions of such shares of Common Stock or other Junior Securities or any securities exchangeable for or convertible into shares of Common Stock or other Junior Securities, (v) any dividends or distributions of rights or Common Stock or Junior Securities in connection with a shareholders’ rights plan or any redemption or repurchase of rights pursuant to any shareholders’ rights plan, and (vi) the exchange or conversion of Junior Securities for or into other Junior Securities and the payment of cash in lieu of fractional shares.

Dividends in Cash or in Kind. Subject to Corporation being authorized to pay dividends pursuant to the requirements of the Corporations Act, each Holder Holders shall be entitled to receive, and the Corporation shall pay, cumulative preferential dividends out of funds legally available on the Stated Value represented by such Holder’s Series A Preference Shares at the rate per share (as a percentage of such the Stated ValueValue per share) of 810% per annum, subject to increase pursuant to Section 10(b)), payable semi-annually quarterly on March 31, June 30, September 30 and December 3131 of each year, beginning on the first such date after the Original Issue DateJune 30, 2012, and on each Conversion Date (with respect only to Series A Preference Shares Preferred Stock being converted) (each such date, a “Dividend Payment Date”) (if any Dividend Payment Date is not a Trading Day, the applicable payment shall be due on the next succeeding Trading Day) in cash, or at the Corporation’s option, in duly authorized, validly issued, fully paid and non-assessable shares of Common StockStock as set forth in this Section 3(a), or a combination thereof, in each case as provided in the next sentence thereof (the amount to be paid in shares of Common Stock, the “Dividend Share Amount”). The form of dividend payments to each Holder shall be determined in the following order of priority: (i) if funds are legally available for the payment of dividends and the Corporation is authorized to pay a dividend under the Corporations Act and any of the Equity Conditions have not been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment Date (the “Dividend Notice Period”), in cash only; , (ii) if funds are legally available for the payment of dividends and the Corporation is authorized to pay a dividend under the Corporations Act and all of the Equity Conditions have been met during the Dividend Notice Period, at the sole election of the Corporation, in cash or shares of Common Stock which shall be valued solely for such purpose at the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date; and , (iii) if funds are not legally available for the payment of dividends and the Corporation Equity Conditions have been met during the Dividend Notice Period, in shares of Common Stock which shall be valued solely for such purpose at the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date, (iv) if funds are not authorized to pay a dividend under the Corporations Act legally available for the payment of dividendsdividends and the Equity Condition relating to an effective Conversion Shares Registration Statement has been waived by such Holder, as to such Holder only, in unregistered shares of Common Stock which shall be valued solely for such purpose at the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date, and (v) if funds are not legally available for the payment of dividends and the Equity Conditions have not been met during the Dividend Notice Period, then such dividends shall accrue to the next Dividend Payment Date. The Holders shall have the same rights and remedies with respect to the delivery of any such shares as if such shares were being issued pursuant to Section 6. Dividends may be franked or unfranked for Australian tax law purposes.