Common use of Dividends, Redemptions, Etc Clause in Contracts

Dividends, Redemptions, Etc. No Loan Party shall make any Distributions or set apart any sum for any such purpose, except as follows: (i) Any Subsidiary of the Borrower may pay dividends on its Equity Securities to the Borrower or any wholly owned Subsidiary of the Borrower; (ii) The Borrower may purchase fractional shares of its capital stock arising out of stock dividends, splits or combinations or business combinations; (iii) The Borrower may make payments or distributions to dissenting stockholders pursuant to applicable law; (iv) The Borrower may repurchase shares of capital stock owned by Xxxxx X. Xxxx in an aggregate amount not to exceed, during the term of this Agreement, the outstanding principal amount of the Executive Note (plus any interest accrued thereon), so long as (A) the consideration given by the Borrower for such shares consists only of a non-cash charge related to the forgiveness of all or any portion of the indebtedness arising under the Executive Note or (B) such repurchase is otherwise permitted by clause (v) below; and (v) In addition to the foregoing, the Borrower may purchase shares of its capital stock from any shareholder (including Xxxxx X. Xxxx) with cash and Permitted Subordinated Indebtedness in an amount not to exceed $5,000,000 during any Fiscal Year, provided that after giving effect to the making of each such purchase, the Borrower is in compliance with Section 5.03(c) and no Default has occurred and is continuing on the date of, or would result after giving effect to, any such purchase; provided, that in no event shall the aggregate amount of Distributions made by the Borrower during any Fiscal Year of the Borrower exceed the Net Income of the Loan Parties for the most recently ended Fiscal Year of the Borrower, unless such distributions are for payment of taxes by an upper-tier entity with respect to a lower-tier entity.

Dividends, Redemptions, Etc. No Loan Party shall make any Distributions or set apart any sum for any such purpose, purpose except as follows: (i) Any Subsidiary of the a Borrower may pay dividends or distributions on its Equity Securities to the a Borrower or any wholly owned Subsidiary of the Borrowerintervening Subsidiary; (ii) the Borrowers may make Distributions to the Parent (and the Parent may make such Distributions) for the sole purpose of permitting the Parent (x) to purchase stock or stock options of the Parent from present or former officers, directors or employees of any Loan Party upon the death, disability or termination of employment of such officers, directors or employees or (y) to make payments pursuant to and in accordance with stock option plans or other benefit plans approved by the Parent’s board of directors for directors, officers or employees of the Loan Parties; provided that (A) no Event of Default then exists or would result therefrom, (B) after giving effect to the proposed Distribution, the Borrowers are in compliance on a pro forma basis with the covenants set forth in Section 5.03 and (C) after giving effect to the proposed Distribution, the Unused Revolving Commitment is at least $2,500,000; provided, further that the aggregate amount of such Distributions, when added to the aggregate amount paid by any Loan Party to purchase such common stock or common stock options (or other Equity Securities) from such officers or employees, does not exceed $2,000,000 in any fiscal year or $4,000,000 during the term of the Agreement; provided that if at the time of any such Distribution the Total Leverage Ratio is equal to or less than 1.50:1.00 after giving effect thereto, the Borrowers may make Distributions pursuant to this clause (ii) in an amount that does not exceed $5,000,000 in any fiscal year subject to clauses (A), (B) and (C) above; (iii) The Borrower Borrowers may make Distributions to the Parent to pay corporate overhead expenses incurred in the ordinary course and as may be necessary to permit the Parent to pay its expenses and liabilities incurred in the ordinary course, including, without limitation, (i) customary and reasonable salary, bonus and other benefits payable to officers, employees and consultants of Parent, (ii) customary and reasonable fees and expenses paid to members of the board of directors of Parent or payments in respect of indemnification obligations to such board members and (iii) reasonable general corporate overhead expenses of Parent; (iv) The Borrowers may make Distributions to Parent to permit Parent to pay federal and state income taxes then due and owing, franchise taxes and other similar licensing expenses incurred in the ordinary course of business in an aggregate amount not to exceed the amount necessary to pay such taxes and licensing expenses; (v) Parent may declare and pay dividends or make other Distributions with respect to its Equity Securities payable solely in shares of Equity Securities; (vi) Parent may purchase fractional shares of its capital stock arising out of stock dividends, splits or combinations or business combinations; (iii) The Borrower may make payments mergers, consolidations or distributions to dissenting stockholders pursuant to applicable law; (iv) The Borrower may repurchase other acquisitions and pay cash in lieu of fractional shares upon the exercise of warrants, options or other securities convertible into or exercisable for capital stock owned by Xxxxx X. Xxxx in an aggregate amount not to exceed, during the term of this Agreement, the outstanding principal amount of the Executive Note (plus any interest accrued thereon), so long as (A) the consideration given by the Borrower for such shares consists only of a non-cash charge related to the forgiveness of all or any portion of the indebtedness arising under the Executive Note or (B) such repurchase is otherwise permitted by clause (v) belowParent; and (vvii) In addition to Parent may redeem its outstanding preferred stock and options in connection with the foregoing, the Borrower may purchase shares of its capital stock from any shareholder (including Xxxxx X. Xxxx) with cash and Permitted Subordinated Indebtedness in an amount not to exceed $5,000,000 during any Fiscal Year, provided that after giving effect to the making of each such purchase, the Borrower is in compliance with Initial Public Offering as contemplated by Section 5.03(c) and no Default has occurred and is continuing on the date of, or would result after giving effect to, any such purchase; provided, that in no event shall the aggregate amount of Distributions made by the Borrower during any Fiscal Year of the Borrower exceed the Net Income of the Loan Parties for the most recently ended Fiscal Year of the Borrower, unless such distributions are for payment of taxes by an upper-tier entity with respect to a lower-tier entity2.06(c)(ii).

Dividends, Redemptions, Etc. No Loan Party Neither Guarantor nor any of its Subsidiaries shall pay any dividends or make any Distributions distributions on its Equity Securities; purchase, redeem, retire, defease or otherwise acquire for value any of its Equity Securities; return any capital to any holder of its Equity Securities as such; make any distributions of assets, Equity Securities, obligations or securities to any holder of its Equity Securities as such; or set apart any sum for any such purpose, ; except as follows: (iA) Any Subsidiary either Guarantor or any of the Borrower its Subsidiaries may pay dividends on its Equity Securities to the Borrower or any wholly owned Subsidiary of the Borrowercapital stock payable solely in such Person's own capital stock; (iiB) The Borrower any Subsidiary of Guarantor may purchase fractional shares of its capital stock arising out of stock dividends, splits pay dividends to Guarantor or combinations or business combinationsto such Subsidiary's direct parent; (iiiC) The Borrower may make payments or distributions to dissenting stockholders pursuant to applicable law; (iv) The Borrower may repurchase shares of capital stock owned by Xxxxx X. Xxxx in an aggregate amount not to exceed, during the term of this Agreement, the outstanding principal amount of the Executive Note (plus any interest accrued thereon), so long as (A) the consideration given by the Borrower for such shares consists only of a non-cash charge related to the forgiveness of all or any portion of the indebtedness arising under the Executive Note or (B) such repurchase is otherwise permitted by clause (v) below; and (v) In addition to the foregoing, the Borrower Guarantor may purchase shares of its capital stock from any shareholder (including Xxxxx X. Xxxx) with cash for its employee stock option plans and Permitted Subordinated Indebtedness in an amount not to exceed $5,000,000 during any Fiscal Yearemployee stock purchase plans, provided that after giving effect to (A) the making aggregate amount of each such purchasepurchases does not exceed $50,000,000 in any fiscal year of Guarantor, the Borrower is in compliance with Section 5.03(cand (B) and no Default has occurred and is continuing on at the date of, time of such purchase or would result will occur after giving effect to, any to such purchase; provided, ; (D) Guarantor may purchase shares of its capital stock with the proceeds received by it from a substantially concurrent issue of new shares of its capital stock; (E) Guarantor may otherwise purchase shares of its capital stock provided that in no event shall the aggregate amount of Distributions made by such purchases does not exceed $100,000,000 and so long as at the Borrower during time any Fiscal Year such purchase is consummated and after giving effect thereto, Tangible Net Worth is not less than the amount then required pursuant to Section 10(c)(iv); and (F) Guarantor may pay cash dividends on its capital stock at any time after Guarantor's 2001 fiscal year, provided the aggregate amount of the Borrower such cash dividends shall not exceed the Net Income $10,000,000 in any fiscal year of the Loan Parties for the most recently ended Fiscal Year of the Borrower, unless such distributions are for payment of taxes by an upper-tier entity with respect to a lower-tier entityGuarantor.