Dividends. (a) Holders of the issued and outstanding shares of Preferred Stock shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below: (i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock. (ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward). (iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP. (iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”). (b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law. (c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 3 contracts
Samples: Subscription Agreement (MedTech Acquisition Corp), Subscription Agreement (MedTech Acquisition Corp), Backstop Letter Agreement (MedTech Acquisition Corp)
Dividends. (a) Holders of If on any date while PSUs are outstanding hereunder, the issued and outstanding shares of Preferred Stock Company shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends pay any dividend on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock Shares (other than dividends paid a dividend payable in Shares), the number of PSUs (if any) held by the Participant shall be increased by a number equal to: (a) the product of (x) the number of outstanding PSUs held by the Participant as of the related dividend record date, multiplied by (y) a dollar amount equal to the per Share amount of any cash dividend (or, in the case of any dividend payable in whole or in part other than in cash or Shares, the per Share value of such dividend, as determined in good faith by the Committee), divided by (b) the Fair Market Value of a Share on the payment date of such dividend.
(b) In the case of any dividend declared on Shares that is payable in the form of Common StockShares, Convertible Securities or Optionsthe number of PSUs, if any, held by the Participant shall be increased by a number equal to the product of (I) the number of outstanding PSUs held by the Participant as if immediately prior of the related dividend record date, multiplied by (II) the number of Shares (including any fraction thereof) payable as a dividend on a Share. Shares shall be transferred with respect to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable additional PSUs granted pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid 4 at the same time as Shares are transferred with respect to the Holders of the Preferred StockEarned PSUs to which such additional PSUs were attributable.
(c) For purposes of this Section 4, the number of PSUs held by the Participant as of the applicable dividend record date shall be deemed to equal (i) zero (0), if such dividend record date occurs prior to the Determination Date or (ii) In addition to the Earned PSUs (if any) (with any dividends additional PSUs granted pursuant to this Section 4(a)(i4 to be added to the Earned PSUs held by Participant), if such dividend record date occurs after the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Determination Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if any dividend on Shares was paid by the Corporation elects to pay all or any part Company during the period beginning on the Date of Grant and ending on the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Determination Date, on the “Dividend PIK Amount”)Determination Date, an additional number of PSUs calculated in accordance with this Section 4, assuming Participant had held the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, Earned PSUs (if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (Aany) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividendsdividend(s), shall be the same day as the record date for the payment of dividends immediately added to the holders number of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent Earned PSUs established as of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable lawDetermination Date.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 3 contracts
Samples: Employment Agreement (Aramark), Performance Stock Unit Award Agreement (Aramark), Employment Agreement (Aramark)
Dividends. (a) The Holders of the issued and outstanding shares of the Series B Preferred Stock, in preference to the holders of all Junior Capital Stock shall and on a pari passu basis with holders of Parity Capital Stock, will be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), ifwhen, as and when if dividends are declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods cumulative dividends as provided in this Section 2. Dividends on each outstanding share of Series B Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated or at the option of the Corporation, in such number of shares of Series B Preferred Stock as is set forth in Section 2(d) below, and accrue (xwhether or not earned or declared) at the rate of 8% per annum on the sum of (i) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by Purchase Price and (ii) all accumulated and unpaid dividends accrued thereon from the 10-Day VWAPdate of issuance thereof (the "Series B Dividends"). Such dividends will be calculated and accrued on a quarterly basis on the last day of each fiscal quarter of the Corporation in respect of the prior three month period prorated on a daily basis for partial periods.
(ivb) Each Participating Dividend or Annual Dividend If the Corporation at any time pays less than the total amount of Series B Dividends then accrued with respect to the Series B Preferred Stock, such payment shall be paid pro rata distributed ratably among the Holders based upon the aggregate accrued but unpaid Series B Dividends on the Series B Preferred Stock held by each such Holder.
(c) In the event that the Corporation declares or pays any dividends upon the Common Stock (whether payable in cash, securities or other property) other than dividends payable solely in shares of Common Stock, the Corporation shall also declare and pay to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for same time that it declares and pays such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares the Common Stock, the dividends which would have been declared and paid with respect to the Series B Preferred Stock had all of the outstanding Series B Preferred Stock been converted in accordance with Section 6(a) immediately prior to the record date for such dividend, or if no record date is fixed, the date as of which the record holders of Common Stock entitled to such dividends are to be determined.
(d) The Corporation may pay the “Common Series B Dividends to each Holder by the issuance of such number of shares of Series B Preferred Stock Dividend Record Date”), as equals the quotient of (i) the accrued and unpaid Series B Dividends with respect to the shares of Series B Preferred Stock held such Holder and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”)Purchase Price.
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Airnet Communications Corp), Securities Purchase Agreement (Airnet Communications Corp), Securities Purchase Agreement (SCP Private Equity Partners Ii Lp)
Dividends. (a) Holders The holders of the issued and outstanding shares of Series F Preferred Stock shall be entitled to receive, out receive in preference to the holders of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares any and all other classes of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as when and if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods cumulative dividends on such Series F Preferred Stock in cash at the rate per annum of $0.163 per share from the Issuance Date (as defined below), subject to proration for partial years on the basis of a 365-day year (the “Series F Preferred Dividends”). The holders of the Series A Preferred Stock, the Series B Preferred Stock, the Series C Preferred Stock, the Series D Preferred Stock and the Series E Preferred Stock (collectively, the “Junior Preferred Stock”) shall be entitled to receive, pari passu with respect to each outstanding such series of Junior Preferred Stock and in preference to the Junior Stock (as defined in Section A.12), when as and if declared by the Board of Directors, out of funds legally available therefore, cumulative dividends on such Preferred Stock in cash at the rate per annum of $0.036 per share with respect to the Series A Preferred Stock, $0.052 per share with respect to the Series B Preferred Stock, $0.051 per share with respect to the Series C Preferred Stock, $0.146 per share with respect to the Series D Preferred Stock and $0.154 per share with respect to the Series E Preferred Stock, from the Issuance Date, subject to proration for partial years on the basis of a 365 day year (collectively, the “Junior Preferred Dividends” and together with the Series F Preferred Dividends, the “Preferred Dividends”). As to each share of Preferred Stock, the date on which such share of Preferred Stock (was issued by the Corporation is referred to as the “Annual Dividends”) at a rate per annum (calculated on Issuance Date.” The Series F Preferred Dividends and the basis of an actual 365- or 366-day year, Junior Preferred Dividends will accumulate commencing as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the applicable Issuance Date of such shareand shall be cumulative and compounded annually, to the extent unpaid, whether or not they have been declared and whether or not the Corporation has funds may legally available pay the dividends. No dividends on the Junior Preferred Stock shall be paid or set apart for payment unless, at the payment same time, a like proportionate dividend shall be paid or set apart to all shares of Junior Preferred Stock then outstanding. Dividends paid in an amount less than the total amount of such dividends at the time accumulated and payable on all outstanding shares of Junior Preferred Stock shall be payable annually in arrears, if, allocated pro rata based upon the relative cumulative and unpaid dividends on all such shares at the time outstanding. So long as and when so authorized and declared by the Board any shares of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Series F Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of are outstanding and the Series F Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation have not been paid in its sole discretion, be paid (A) full in cash, (Ba) by delivery of no dividend whatsoever (other than stock dividends) shall be paid or declared, and no distribution shall be made on any shares of Common Stock, the Junior Preferred Stock or (C) by delivery of any combination of cash and shares of Common the Junior Stock; and (b) except as provided thatin Section A.8(g)(iv), if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in no shares of Common Stock or other shares of Junior Stock shall be repurchased, redeemed or acquired by the Corporation and no monies shall be paid into or set aside or made available for a sinking fund for the purchase, redemption or acquisition thereof. So long as any shares of Junior Preferred Stock are outstanding and the Junior Preferred Dividends have not been paid in full in cash, (such amount with respect a) no dividend whatsoever (other than stock dividends) shall be paid or declared, and no distribution shall be made on any shares of the Junior Stock; and (b) except as provided in Section A.8(g)(iv), no shares of Common Stock or other shares of Junior Stock shall be repurchased, redeemed or acquired by the Corporation and no monies shall be paid into or set aside or made available for a sinking fund for the purchase, redemption or acquisition thereof. In addition to any Annual Dividend Payment Datethe Preferred Dividends, the “Dividend PIK Amount”)holders of Preferred Stock shall be entitled to receive, together with the Series 1 Stock, out of funds legally available therefor, any dividends declared on the Common Stock (treating each share of Preferred Stock or Series 1 Stock as being equal to the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to into which each such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares share of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall Series 1 Stock would be payable converted if it were converted pursuant to the Holders provisions of Preferred Stock Section A.6 hereof with such number determined as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment determination of dividends to the holders of shares of Common Stock (entitled to receive such dividends). All numbers relating to the “Common Stock Dividend Record Date”), and (ii) with respect calculation of dividends pursuant to Annual Dividends, this Section A.3 shall be not more than thirty (30) days nor less than ten (10) days preceding subject to equitable adjustment in the applicable Annual Dividend Payment Date (such dateevent of any stock split, an “Annual Dividend Payment Record Date”).
(b) Without combination, reorganization, recapitalization, reclassification or other similar event involving a change in the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Series A Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such actionSeries B Preferred Stock, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Series C Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Series D Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If , the Fundamental Transaction Date or Conversion Date of any share of Series E Preferred Stock, the Series F Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on or the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicableSeries 1 Stock.
Appears in 2 contracts
Samples: Series F Preferred Stock Purchase Agreement (GlassHouse Technologies Inc), Series F Preferred Stock Purchase Agreement (GlassHouse Technologies Inc)
Dividends. (a) Holders Subject to the provisions of this Agreement, the Amended M&AA and any applicable Laws, the Board may from time to time declare dividends and other distributions on the issued and outstanding Shares of the Company and authorize payment of the same out of the funds of the Company legally available therefor.
(b) As to the dividend payment, (1) the Preferred Shares shall rank senior and prior to the Ordinary Shares and other Junior Securities, (2) the Series B Preferred Shares shall rank senior and prior to the Series A Preferred Shares and the Series A1 Preferred Shares, and (3) Series A Preferred Shares and Series A1 Preferred Shares shall rank pari passu with each other.
(c) Subject to Section 7.1, the Board may from time to time declare dividends and other distributions on issued and outstanding shares of Preferred Stock shall be entitled to receive, the Company and authorize payment of the same out of the assets funds of the Corporation legally Company lawfully available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally therefor. When and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor PriceBoard, (A) each holder of the number of shares of Common Stock that are permitted Series B Preferred Shares shall be entitled to, prior and in preference to be delivered in partial any declaration or payment of any dividend on the Dividend PIK Amount Series A Preferred Shares, Series Al Preferred Shares, the Ordinary Shares and other Junior Securities, dividends carried at the rate of five percent (5%) per annum of the “Actual Dividend PIK Payment Shares”Original Series B Issue Price (As Adjusted) shall be calculated on each Series B Preferred Share held by dividing such holder, for each year such Series B Preferred Share was issued and outstanding (v) the Dividend PIK Amount by (w) the Floor Price and or pro rata for a partial year); (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for after the payment of dividends on the Series B Preferred Shares in full, each holder of the Series A Preferred Shares and each holder of the Series Al Preferred Shares shall be entitled to, prior and in preference to any declaration or payment of any dividend on the holders Ordinary Shares and other Junior Securities, dividends carried at the rate of shares five percent (5%) per annum of Common Stock the Original Series A Issue Price (As Adjusted) on each such Series A Preferred Share held by such holder and dividends carried at the “Common Stock Dividend Record Date”rate of five percent (5%) per annum of the Original Series Al Issue Price (As Adjusted) on each such Series Al Preferred Share held by such holder (as the case may be), and for each year such Series A Preferred Share or such Series Al Preferred Share (iias the case may be) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-was issued and outstanding shares (or pro rata for a partial year); and (C) each holder of the Preferred StockShares shall have the right to participate in any distribution among other Shares or Equity Securities of the Company pro rata based on the number of Ordinary Shares held by each such holder (calculated on an as-converted basis). Unless and until any dividends or other distributions in like amount have been paid in full on the Series B Preferred Shares (on an as-converted basis), the Corporation Company shall not (i) declare, pay or set aside apart for payment payment, any dividends or dividend and other distributions upon on any Junior Securities or make any payment on account of, or set apart for payment, money for a sinking or other similar fund for, the purchase, redemption or other retirement of, any Junior Securities or any warrants, rights, calls or options exercisable or exchangeable for or convertible into any Junior Securities, or make any distribution in respect thereof, either directly or indirectly, and whether in cash, obligations or shares of the Company or other property. Unless and until any dividends or other distributions in like amount have been paid in full on the Series A Preferred Shares and the Series Al Preferred Shares (on an as-converted basis), the Company shall not declare, pay or set apart for payment, any dividend and other distributions on any Junior Securities or make any payment on account of, or set apart for payment, money for a sinking or other similar fund for, the purchase, redemption or other retirement of, any Junior Securities or any warrants, rights, calls or options exercisable or exchangeable for or convertible into any Junior Securities, or make any distribution in respect thereof, either directly or indirectly, and whether in cash, obligations or shares of the Company or other property. The above dividends shall be payable and accrue when, as and if declared by the Board and shall be cumulative;
(d) If the Company has declared or accrued but unpaid dividends with respect to any Preferred Share upon the conversion of such Preferred Share as provided in Amended M&AA, then the Company shall, at its discretion, opt to, (i) as agreed by the holders of such Preferred Shares to be converted, convert all such declared or accrued but unpaid dividends on such Preferred Share to be converted into the Ordinary Shares pursuant to Amended M&AA at the then-effective applicable Conversion Price (as defined in the Amended M&AA) on the same basis as such Preferred Share to be converted, or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares off all such dividends by cash upon conversion of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable lawShares.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 2 contracts
Samples: Shareholder Agreements (Uxin LTD), Shareholder Agreements (Uxin LTD)
Dividends. (a) Holders A. Each share of the issued and outstanding shares of Series A Preferred Stock shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), ifwhen, as and when if authorized and declared by the Board of Directors, out of any funds of the Corporation legally available therefor, on each Annual Dividend Payment cumulative dividends in an amount equal to (i) 6.50% per annum of the Stated Value of such share as of the Record Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock such dividend (the “Annual Dividends”) at a such rate per annum (calculated on the basis of an actual 365- or 366-day yearannum, as applicablemay be adjusted pursuant to the terms and conditions hereof, including Section (H) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (this Article IV, the “Dividend Rate”; each such dividend on the Series A Preferred Stock, a “Regular Dividend” and, collectively, the “Regular Dividends”), payable and (ii) on an as-converted basis, any dividend or other distribution, whether paid in accordance with Section 4(a)(iii) below. Subject to Section 4(ccash, in-kind or in other property (including, for the avoidance of doubt, any securities), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing Directors on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder issued and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in outstanding shares of Common Stock (such in an amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), determined by assuming that the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to into which such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to share of such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Series A Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall could be payable converted pursuant to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and Section (C) such action is otherwise in compliance with of Article VII on the applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend such dividend or distribution on the Preferred Common Stock but occurs on or prior to the next Annual Dividend Payment Datewere issued to, then and held by, the Holder of such share at the Close of Business Series A Preferred Stock on such Annual Dividend Payment Record Date will be entitled(each such dividend on the Series A Preferred Stock pursuant to this clause (ii), notwithstanding a “Participating Dividend” and, collectively, the related Fundamental Transaction or conversion“Participating Dividends” and, together with the Regular Dividends, the “Dividends”). For purposes of this Certificate of Designation, the term “Stated Value” shall mean $1,000.00 per share of Series A Preferred Stock, as applicable, adjusted pursuant to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in Sections (C) and (D) of this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion DateArticle IV, as applicable.
Appears in 2 contracts
Samples: Equity Commitment and Investment Agreement (Ani Pharmaceuticals Inc), Merger Agreement (Ani Pharmaceuticals Inc)
Dividends. (a) The Holders of RP as of 12:00 noon, New York City time, on the issued and outstanding shares of Preferred Stock Business Day preceding the applicable Dividend Payment Date, shall be entitled to receive, when, as and if declared by the Trustees, out of the assets of the Corporation funds legally available for therefor, (i) cumulative dividends, at the Applicable Dividend Rate, (ii) a Right (as defined in paragraph 3(k) of this Part I of Section 12.1) to receive an Additional Dividend or Additional Dividends in certain circumstances, and (iii) any additional amounts as set forth in paragraph 3(m) of this Part I of Section 12.1. Each share of RP shall remain on a parity with other shares of RP with respect to the payment of dividends, dividends at the rates fixed for the respective series. No dividends on the terms described below:
(i) Holders any series of shares of Preferred Stock RP shall be entitled paid or declared if there shall exist a Non-Payment Period with respect to participate equally any other series of RP unless dividends in ratable proportion are declared and ratably with the holders of shares of Common Stock in all dividends paid on such other series. Dividends on the shares of Common Stock (other than dividends RP so declared and payable shall be paid in preference to and in priority over any dividends declared and payable on the form Common Shares.
(b) Dividends on each share of Common StockRP shall accumulate from its Date of Original Issue and will be payable, Convertible Securities or Optionswhen, as and if declared by the Trustees, on each Dividend Payment Date applicable to such share of RP.
(c) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) Each declared dividend shall be payable on the same date that applicable Dividend Payment Date to the Holder or Holders of such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders RP as set forth in paragraph 3(a) of this Part I of Section 12.1. Dividends on shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are RP in arrears with respect to any past Dividend Payment Date may be declared and paid at the same time any time, without reference to any regular Dividend Payment Date, pro rata to the Holders of such shares as of a date not exceeding five Business Days preceding the Preferred Stockdate of payment thereof as may be fixed by the Trustees. Any dividend payment made on any share of RP shall be first credited against the dividends accumulated but unpaid (whether or not earned or declared) with respect to the earliest Dividend Payment Date on which dividends were not paid.
(iid) In addition Neither Holders nor Beneficial Owners of shares of RP shall be entitled to any dividends on the shares of RP, whether payable in cash, property or stock, in excess of full cumulative dividends thereon (which include any amounts actually due and payable pursuant to Section 4(a)(iparagraph 3(k), 3(1) or 3(m) of this Part I of Section 12.1) . Except as provided in paragraph 3(h) of this Part I of Section 12.1, neither Holders nor Beneficial Owners of shares of RP shall be entitled to any interest, or other additional amount, on any dividend payment on any share of RP which may be in arrears.
(e) Except as otherwise provided herein, the Corporation Applicable Dividend Rate on each share of RP for each Dividend Period with respect to such share shall pay, subject be equal to Section 4(c), if, as and when declared by the Board of Directors, out of funds lower of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% that results from implementation of the Liquidation Preference per share of Preferred Stock (remarketing procedures described in Part II hereof and the “Maximum Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iiif) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares declared dividends for each share of Common Stock (such amount with respect to any Annual RP payable on the Initial Dividend Payment Date, the “Dividend PIK Amount”)Payment Date for each 7-day Dividend Period, the Dividend Payment Date for each 28-day Dividend Period and the Dividend Payment Date or Dates for each Short-Term Dividend Period shall be computed by the Trust by multiplying the Applicable Dividend Rate in effect with respect to dividends payable on such share on such Dividend Payment Date by a fraction the numerator of which shall be the number of shares days in such Dividend Period such share was outstanding from and including its Date of Common Stock Original Issue or the preceding Dividend Payment Date, as the case may be, to be delivered and including the day preceding such Dividend Payment Date, and the denominator of which shall be determined 365, then multiplying the amount so obtained by $50,000 (in the case of Series A RP) or $25,000 (in the case of Series B RP and Series C RP) and rounding the amount so obtained to the nearest cent. During any Long Term Dividend Period, the amount of dividends per share payable on any Dividend Payment Date shall be computed by dividing the Applicable Dividend PIK Amount Rate for such Dividend Period by twelve, multiplying the 10-Day VWAP with respect amount so obtained by $50,000 (in the case of Series A RP) or $25,000 (in the case of Series B RP and Series C RP), and rounding the amount so obtained to such Annual the nearest cent; provided, however, that, if the number of days from and including the Date of Original Issue or the preceding Dividend Payment Date; provided that, where as the Corporation has determined in its sole discretion case may be, to pay a Dividend PIK Amount, if and including the 10-Day VWAP with respect to day preceding such Annual Dividend Payment Date is less than 30 and such days do not constitute a full calendar month, then the Floor Priceamount of dividends per share payable on such Dividend Payment Date shall be computed by multiplying the Applicable Dividend Rate for such Dividend Period by a fraction, (A) the numerator of which will be such number of shares days and the denominator of Common Stock that are permitted which will be 360, multiplying the amount so obtained by $50,000 (in the case of Series A RP) or $25,000 (in the case of Series B RP and Series C RP), and rounding the amount so obtained to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAPnearest cent.
(ivg) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear No later than 12:00 noon, New York City time, on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder Trust shall deposit in same-day funds with the Paying Agent the full amount of such share at the Close of Business any dividend declared and payable on such Annual Dividend Payment Record Date will on any share of RP.
(h) The Applicable Dividend Rate for each Dividend Period commencing during a Non-Payment Period shall be entitledequal to the Non-Payment Period Rate and any share of RP for which a Special Dividend Period would otherwise have commenced on the first day of or during a Non-Payment Period shall have a 28-day Dividend Period (in the case of Series A RP) or a 7-day Dividend Period (in the case of Series B RP and Series C RP). Any amount of any dividend due on any Dividend Payment Date for any shares of RP (if, notwithstanding the related Fundamental Transaction or conversionprior to 12:00 noon, as applicable, to receiveNew York City time, on or, at the Corporation’s election, before such Annual Dividend Payment Date, the Trust has declared such declared Annual dividend payable on or within three Business Days after such Dividend Payment Date to the Holders who held such shares of RP as of 12:00 noon, New York City time, on the Business Day preceding such shareDividend Payment Date) or redemption price with respect to any shares of RP not paid to Holders when due but paid to such Holders in the same form of funds by 12:00 noon, New York City time, on any of the first three Business Days after such Dividend Payment Date or due date, as the case may be, shall incur a late charge to be paid therewith to such Holders and calculated for such period of non-payment at the Non-Payment Period Rate applied to the amount of such non-payment based on the actual number of days comprising such period divided by 365. Except as provided in this Section 4(cIf the Trust fails to pay a dividend on a Dividend Payment Date or to redeem any shares of RP on the date set for such redemption (otherwise than because it is prevented from doing so by these By-laws or by applicable law), Annual Dividends on any share the preceding sentence shall not apply and the Applicable Dividend Rate for the Dividend Period commencing during the Non-Payment Period resulting from such failure shall be the Non-Payment Period Rate. For the purposes of Preferred Stock will cease the foregoing and paragraphs 3(g) and 4(g) of this Part I of Section 12.1, payment to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.a person in New York Clearing House (next-
Appears in 2 contracts
Samples: Bylaws (Putnam Municipal Opportunities Trust), Bylaws (Putnam Municipal Opportunities Trust)
Dividends. (a) Holders From and after the date of the issued and outstanding issuance of any shares of Series A Preferred Stock, dividends at the rate of five percent (5%) of the Series A Original Issue Price per share of Series A Preferred Stock per annum shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends accrue on the terms described below:
(i) Holders of such shares of Series A Preferred Stock shall be entitled (subject to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid appropriate adjustment in the form event of Common any stock dividend, stock split, combination or other similar recapitalization with respect to the Series A Preferred Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Accruing Dividends”) ). Accruing Dividends shall accrue from day to day, whether or not declared, and shall be cumulative; provided, however, that except as set forth in the following sentence of this Section 4, Subsection 1.1, and Subsection 3.3.2 such Accruing Dividends shall be payable on the same date that such dividends are payable to holders of shares of Common Stockonly when, as, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(iif (a) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of DirectorsDirectors or (b) upon the Conversion of the Series A Preferred Stock into Common Stock pursuant to Subsection 3.1 or (c) upon the Conversion of the Series A Preferred Stock into Qualified Financing Preferred Stock pursuant to Subsection 3.10 and the Corporation shall not otherwise be under any obligation to pay such Accruing Dividends. The Corporation shall not declare, out pay or set aside any dividends on shares of funds any other class or series of capital stock of the Corporation legally available therefor(other than dividends on shares of Common Stock payable in shares of Common Stock) unless (in addition to the obtaining of any consents required elsewhere in the Certificate of Incorporation) the holders of the Series A Preferred Stock then outstanding shall first receive, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends simultaneously receive, a dividend on each outstanding share of Series A Preferred Stock (the “Annual Dividends”) in an amount at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) least equal to 8.00% the greater of (i) the amount of the Liquidation Preference per aggregate Accruing Dividends then accrued on such share of Series A Preferred Stock and not previously paid and (the “Dividend Rate”), payable in accordance with Section 4(a)(iiiii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery the case of shares of a dividend on Common Stock or any class or series that is convertible into Common Stock, that dividend per share of Series A Preferred Stock as would equal the product of (1) the dividend payable on each share of such class or (C) by delivery of any combination of cash and series determined, if applicable, as if all shares of Common Stock; provided that, if the Corporation elects to pay all such class or any part of the total amount of an Annual Dividend in shares of series had been converted into Common Stock and (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A2) the number of shares of Common Stock that are permitted to be delivered issuable upon conversion of a share of Series A Preferred Stock, in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be each case calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated for determination of holders entitled to receive such dividend or (B) in the case of a dividend on any class or series that is not convertible into Common Stock, at a rate per share of Series A Preferred Stock determined by (1) dividing the amount of the dividend payable on each share of such class or series of capital stock by the Board original issuance price of Directors for such dividendsclass or series of capital stock (subject to appropriate adjustment in the event of any stock dividend, which (i) stock split, combination or other similar recapitalization with respect to Participating Dividendssuch class or series) and (2) multiplying such fraction by an amount equal to the Series A Original Issue Price (as defined below); provided that if the Corporation declares, shall be pays or sets aside, on the same day as date, a dividend on shares of more than one class or series of capital stock of the record date for Corporation, the payment of dividends dividend payable to the holders of shares of Common Series A Preferred Stock (the “Common Stock Dividend Record Date”), and (ii) with respect pursuant to Annual Dividends, this Section 4 shall be not more than thirty (30) days nor less than ten (10) days preceding calculated based upon the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without dividend on the consent class or series of capital stock that would result in the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of highest Series A Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicabledividend.
Appears in 2 contracts
Samples: License Agreement (Abpro Corp), License Agreement (Abpro Corp)
Dividends. (a) Holders of From and after the issued and outstanding shares Closing Date, each Holder of Preferred Stock Stock, in preference and priority to the holders of all other classes or series of stock, shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior respect to each Common Stock Dividend Record Dateshare, all shares or fraction of a share, of Preferred Stock then outstanding were and held by such Holder, dividends accruing on a daily basis, commencing from the date of issuance of such share of Preferred Stock, at the rate of nine percent (9%) per annum of the Stated Value per whole share (or proportion thereof with respect to fractional shares) of such series of Preferred Stock (plus any accrued and unpaid dividends) (the “Preferred Dividends”); provided that each Holder of Series B Preferred Stock, in preference and priority to the holders of all other classes or series of stock, shall be entitled to receive, with respect to each share, or fraction of a share, of Series B Preferred Stock then outstanding and held by such Holder, dividends accruing on a daily basis, commencing from the date of issuance of such share of Series B Preferred Stock, at the rate of eleven percent (11%) per annum if Stockholder Approval is not obtained on or prior to the date that is 120 days after the Closing Date. The Preferred Dividends shall be cumulative, whether or not earned or declared, shall compound quarterly and shall be paid quarterly in arrears on the last day of March, June, September and December in each year, commencing [●], 2017. For the avoidance of doubt, dividends shall accrue daily on the Stated Value of each share of Preferred Stock as such Stated Value is increased by any payment of Preferred Dividends pursuant to the immediately succeeding sentence. The Preferred Dividends shall be paid, at the option of the Corporation, in the form of cash or an increase in the Stated Value of the Preferred Stock, or any combination thereof.
(b) In the event that the Corporation shall at any time pay a dividend on or make a distribution in respect of the Common Stock in cash or any other class or series of capital stock of the Corporation, the Corporation shall, at the same time and on the same terms, pay or distribute to each Holder a dividend (or distribution) equal to the dividend that would have been payable to such Holder if the shares, or fraction of a share, of Preferred Stock held by such Holder had been converted into shares Common Stock on the date of determination of holders of Common Stock. Dividends payable pursuant Stock entitled to this Section 4(a)(i) receive such dividend or distribution (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If Except as otherwise provided herein, if at any time the Fundamental Transaction Date or Conversion Date Corporation pays less than the total amount of any share dividends then accumulated with respect to the Preferred Stock, such payment shall be distributed pro rata among the Holders entitled thereto based upon the Stated Value on all shares of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of held by each such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicableHolder.
Appears in 2 contracts
Samples: Investment Agreement, Investment Agreement (Superior Industries International Inc)
Dividends. (a) Holders The holders of the issued and outstanding shares of New Class A Preferred Stock shall be entitled to receive, out of funds legally available for that purpose, dividends at the assets rate of three percent (3%) of the applicable New A Series Subscription Price, per annum, and no more. The holders of all series of New Class B Preferred Stock shall be entitled to receive, out of funds legally available for that purpose, dividends at the rate of five percent (5%) of the applicable New B Series Subscription Price, per annum, and no more. The entitlement of the New Class A Preferred Stock and the New Class B Preferred Stock to such dividends shall be pro rata and on a parity. Such dividends shall be cumulative (cumulating from the date of issuance of such shares of Preferred Stock on a day-to-day basis on the basis of a 360-day year), shall be compounded annually and shall be payable in arrears upon the occurrence of a Liquidation Event (as defined in Section 3 of Part Two of this Article Fourth (such date being herein referred to as the “Dividend Payment Date”). Dividends shall be paid to the holders of record of the New Class A Preferred Stock and New Class B Preferred Stock, as their names appear on the share register of the Corporation legally available on the corresponding record date for the payment distribution.
(b) If, on any Dividend Payment Date, the holders of dividendsthe New Class A Preferred Stock and New Class B Preferred Stock shall not have received the full dividends provided for in the other provisions of this Section 2, then such dividends shall cumulate, whether or not earned or declared, with additional dividends thereon until such dividends shall be paid. Unpaid dividends shall cumulate on a day-to-day basis and shall be computed on the terms described below:basis of a 360-day year.
(ic) Holders of So long as any shares of Preferred Stock shall be entitled to participate equally and ratably with outstanding, without the written consent of the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of New Class A Preferred StockStock then outstanding, all series voting together as a single class, and the written consent of the holders of not less than fifty five percent (55%) of the shares of New Class B Preferred Stock then outstanding, all series voting together as a single class, neither the Corporation shall not nor any Subsidiary or affiliate of the Corporation shall: (i) declare, declare or pay or set aside for payment any dividends or distributions upon on any Junior Securities Stock any dividend whatsoever, whether in cash, property or otherwise; or (ii) repurchaseexcept as set forth in Section 3 of Part Two of this Article Fourth, redeem or otherwise acquire make any distribution on any Junior Securities (other than repurchasesStock, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Optionsor redeem any Junior Stock, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available any monies for a sinking fund for the purchase or redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 2 contracts
Samples: Investment Agreement (O'Gara Group, Inc.), Investment and Recapitalization Agreement (O'Gara Group, Inc.)
Dividends. (a) Holders of the issued Series A Preferred, in preference to the holders of the Common Stock and outstanding shares pari passu with the holders of Preferred Stock Series B Preferred, shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally when and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of DirectorsDirectors of the Corporation (the “Board”), but only out of funds of the Corporation that are legally available therefor, on each Annual Dividend Payment Date for cash dividends at the applicable Payment Period or Payment Periods dividends rate of six percent (6%) of the Series A Original Issue Price (as defined below) per annum on each outstanding share of Series A Preferred Stock (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like with respect to such shares after the filing date hereof), compounded annually. The “Annual DividendsSeries A Original Issue Price” of the Series A Preferred shall be one dollar ($1.00) per share, subject to appropriate adjustment in the event of any stock dividend, stock split, combination of shares, reverse stock split, reorganization, recapitalization, or other reclassification (each a “Recapitalization Event”) affecting the Series A Preferred. Holders of the Series B Preferred, in preference to the holders of the Common Stock and pari passu with the Holders of Series A Preferred, shall be entitled to receive, when and as declared by the Board, but only out of funds that are legally available therefor, cash dividends at a the rate of eight percent (8%) of the Series B Original Issue Price (as defined below) per annum on each outstanding share of Series B Preferred (calculated on as adjusted for any stock dividends, combinations, splits, recapitalizations and the basis of an actual 365- or 366-day yearlike with respect to such shares after the filing date hereof), as applicable) equal to 8.00% compounded annually. The “Series B Original Issue Price” of the Liquidation Preference Series B Preferred shall be $3.2481 per share share, subject to appropriate adjustment in the event of Preferred Stock (any Recapitalization Event affecting the “Dividend Rate”), payable Series B Preferred. The dividends described in accordance with this Section 4(a)(iii1(a) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such shareday to day, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends declared, and shall be cumulative; provided, however, that except as set forth in the following sentence of this Section 1(a) or in Sections 3(b) and 5, such dividends shall be payable annually in arrearsonly when, ifas, as and when so authorized and if declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall be under no obligation to pay such dividends. The Corporation shall not (i) declare, pay or set aside for payment any dividends on shares of any other class or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities series of capital stock of the Corporation (other than repurchasesdividends on shares of Common Stock payable in Common Stock) unless (in addition to the obtaining of any consents required elsewhere in the Certificate of Incorporation) the holders of any Series A Preferred and Series B Preferred then outstanding shall first receive, redemptions or acquisitions simultaneously receive (in addition to any dividend payable pursuant to Section 1(b), below), a dividend equal to all dividends then accrued on such share of Series A Preferred and Series B Preferred and not previously paid. In the event that a dividend is to be paid on the Series A Preferred and Series B Preferred in an amount less than the aggregate amount of accrued but unpaid dividends, such dividends shall be allocated pro rata among the shares of Series A Preferred and Series B Preferred based upon the number of shares of Junior Securities with respect on an as-converted to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable lawCommon Stock basis.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 2 contracts
Samples: Share Exchange Agreement (Paylocity Holding Corp), Share Exchange Agreement (Paylocity Holding Corp)
Dividends. (a) Holders of the issued and outstanding shares of The Series A Preferred Stock shall not be entitled to receive, receive dividends unless and until the Board of Directors declares a dividend in respect of the Common Stock out of the assets of the Corporation legally available for the payment of dividendsfunds therefor; provided, however, that no dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with declared or paid upon the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in payable upon the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of solely in additional shares of Common Stock, provided that an appropriate adjustment in the Conversion Price is made under Section 6(a) hereof) or any other stock ranking on liquidation junior to the Series A Preferred Stock (such stock being referred to hereinafter collectively as "Junior Stock") unless (i) after the payment of the dividend on the Common Stock and no dividends Junior Stock (and the simultaneous dividend on the Series A Preferred Stock) the Corporation's net worth exceeds the aggregate liquidation preference of the Series A Preferred Stock (provided that this clause (i) shall not apply if the dividend is approved by the holders of a majority of the outstanding shares of Series A Preferred Stock) and (ii) there shall be simultaneous declaration or payment, as applicable, of a dividend upon the Series A Preferred Stock.
(b) In the case of any dividend being declared upon the Common Stock, the dividend which shall be declared upon each share of Series A Preferred Stock as a condition to such dividend upon the Common Stock shall be equal in amount to the dividend payable to holders upon that number of shares of Common Stock unless acquirable upon conversion of a share of Series A Preferred Stock immediately before the full dividends contemplated by this declaration of such dividend, with such conversion being based on the then applicable Conversion Price determined in accordance with Section 4(a)(i) are paid at the same time to the Holders 6 as of the Preferred record date for the declaration of such dividend on the Common Stock.
(iic) In addition to the case of any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when dividend being declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion class of the Preferred Junior Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of that is convertible into Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part amount of the total amount dividend which shall be declared upon each share of an Annual Dividend in shares of Common Series A Preferred Stock (as a condition to such amount with respect to any Annual Dividend Payment Datedividend on Junior Stock, the “Dividend PIK Amount”), divided by the number of shares of Common Stock to be delivered acquirable upon conversion of a share of Series A Preferred Stock, shall be determined equal the amount of the dividend declared upon each share of such class of Junior Stock, divided by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered acquirable upon conversion of a share of such class of Junior Stock, in partial payment each case assuming such conversion occurred immediately before the declaration of the Dividend PIK Amount such dividend.
(the “Actual Dividend PIK Payment Shares”d) No dividend shall be calculated by dividing declared or paid upon any class of Junior Stock (vother than Common Stock) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of convertible into Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without without the consent of the Holders representing holders of at least a majority of the then-issued and outstanding shares of Series A Preferred Stock, the Corporation shall not .
(ie) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions Holders of shares of Junior Securities with respect Series A Preferred Stock shall be entitled to equity awards (including in connection with “cashless” or “net” exercises of Optionsshare equally, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) share for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unlessshare, in each case, (A) immediately before and after all such dividends declared upon the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Series A Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Go2net Inc), Stock Purchase Agreement (Go2net Inc)
Dividends. (a) Holders On the first day of each of the issued and outstanding eight successive fiscal quarters for the Corporation that follow the first issuance of any shares of Preferred Class A Stock (the “Class A Original Issue Date”), dividends shall accrue or be entitled to receivepaid (the “Class A Dividends”) on shares of Class A Stock at the rate of $0.11 per quarter (for a total of $0.44 per year) for each share of common stock, out of the assets par value $0.0001 per share of the Corporation legally available for (the payment “Common Stock”), issuable to the holder of dividendsa share of Class A Stock pursuant to the Class A Conversion Ratio defined and described in Section 4 of this Statement of Designations (the “Converted Share Amount”), dividends on subject to appropriate adjustment in the terms described below:
(i) Holders event of shares of Preferred any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Stock or the Common Stock. Class A Dividends, to the extent not paid, shall accrue from day to day, whether or not declared, and shall be entitled cumulative. At such time as the Corporation shall pay all or any portion of any Class A Dividends to participate equally and ratably with the holders of shares the Class A Stock then outstanding, then the Corporation shall simultaneously declare and pay to the holders of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares (but not the holders of Common Class A Stock. ) a per share dividend equal to one fourth (1/4) of the per share amount of any Class A Dividends payable pursuant to this Section 4(a)(i) then paid (the “Participating DividendsCommon Pro Rata Portion”) shall be payable on the same date that such dividends are payable to holders ). Except as otherwise provided in this Statement of shares of Common StockDesignations, and no all accrued dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i)only when, the Corporation shall payas, subject to Section 4(c), if, as and when if declared by the Board of Directors, out of funds Directors of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the The Corporation shall not (i) declare, pay or set aside for payment any dividends on shares of any other class or distributions upon any Junior Securities series of capital stock of the Corporation unless (i) the holders of the Class A Stock then outstanding shall first receive, or simultaneously receive, the Class A Dividends then accrued and not previously paid and (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions the holders of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment Common Stock simultaneously receive the Common Pro Rata Portion of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result amount of the exercise Class A Dividend then paid. Any dividends paid following such payments shall be paid to the holders of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) Class A Stock (for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Common Stock is after an Annual Dividend Payment Record Date for issuable to the holder of a declared Annual Dividend share of Class A Stock based on the Preferred Converted Share Amount) and Common Stock but occurs together on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicablea pro rata basis.
Appears in 2 contracts
Samples: Merger Agreement (Camden Learning CORP), Agreement and Plan of Reorganization (Camden Learning CORP)
Dividends. (a) Holders a. Subject to the prior and superior rights of the issued and outstanding holders of shares of Preferred any other series of Preference Stock or other class of capital stock of the Corporation ranking prior and superior to the shares of this Series with respect to dividends, the holders of shares of this Series shall be entitled to receive, when, as and if declared by the Board of Directors, out of the assets of the Corporation legally available for therefor, (1) quarterly dividends payable on the first day of each of March, June, September and December (each such date being referred to herein as a "Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend Payment Date after the first issuance of a share or a fraction of a share of this Series, in the amount of $.01 per whole share (rounded to the nearest cent) less the amount of all cash dividends declared on this Series pursuant to the following clause (2) since the immediately preceding Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a share of this Series (the total of which shall not, in any event, be less than zero), and (2) dividends payable in cash on the payment of dividends, dividends date for each cash dividend declared on the terms described below:
Common Stock in an amount per whole share (rounded to the nearest cent) equal to the Formula Number (as hereinafter defined) then in effect times the cash dividends then to be paid on each share of Common Stock, par value $.01, of the Corporation (the "Common Stock"). In addition, if the Corporation shall pay any dividend or make any distribution on the Common Stock payable in assets, securities or other forms of noncash consideration (other than dividends or distributions solely in shares of Common Stock), then, in each such case, the Corporation shall simultaneously pay or make on each outstanding whole share of this Series B dividend or distribution in like kind equal to the Formula Number then in effect times such dividend or distribution on each share of the Common Stock. As used herein, the "Formula Number" shall be 1,000; provided, however, that, if at any time after November 20, 1998, the Corporation shall (i) Holders of declare or pay any dividend on the Common Stock payable in shares of Preferred Common Stock shall be entitled to participate equally and ratably with or make any distribution on the holders Common Stock in shares of Common Stock, (ii) subdivide (by a stock split or otherwise) the outstanding shares of Common Stock into a larger number of shares of Common Stock in all dividends paid on or (iii) combine (by a reverse stock split or otherwise) the outstanding shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders a smaller number of shares of Common Stock, and no dividends then in each such event the Formula Number shall be payable adjusted to holders of shares of Common Stock unless a number determined by multiplying the full dividends contemplated Formula Number in effect immediately prior to such event by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i)a fraction, the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board numerator of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date which is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment outstanding immediately after such event and the denominator of which is the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders number of shares of Common Stock that are outstanding immediately prior to such event (and rounding the “Common Stock Dividend Record Date”result to the nearest whole number); and provided further, and (ii) with respect to Annual Dividendsthat, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such dateif at any time after November 20, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock1998, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of issue any shares of such Junior Securitiesits capital stock in a merger, unlessreclassification, or change of the outstanding shares of Common Stock, then in each casesuch event the Formula Number shall be appropriately adjusted to reflect such merger, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date reclassification or Conversion Date of any change so that each share of Preferred Stock is after an Annual continues to be the economic equivalent of a Formula Number of shares of Common Stock prior to such merger, reclassification or change.
b. The Corporation shall declare a dividend or distribution on this Series provided in Section 2(a) immediately prior to or at the same time it declares a dividend or distribution on the Common Stock (other than a dividend or distribution solely in shares of Common Stock); provided, however, that, in the event no dividend or distribution (other than a dividend or distribution in shares of Common Stock) shall have been declared on the Common Stock during the period between any Quarterly Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to and the next Annual subsequent Quarterly Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.a dividend of
Appears in 2 contracts
Samples: Rights Agreement (Illuminet Holdings Inc), Rights Agreement (Illuminet Holdings Inc)
Dividends. (a) Holders From and after the date of this Agreement until the earlier of the issued Topco Effective Time and outstanding shares termination of Preferred Stock this Agreement, none of AMB, ProLogis or New Pumpkin shall be entitled make, declare or set aside any dividend or other distribution to receiveits respective stockholders or shareholders without the prior written consent of AMB (in the case of ProLogis or New Pumpkin) or ProLogis (in the case of AMB); provided, out however, that the written consent of the assets of the Corporation legally available other party shall not be required for the authorization and payment of dividends, dividends on the terms described below:
(i) Holders distributions at their respective stated dividend or distribution rates with respect to AMB Preferred Stock and ProLogis Preferred Shares and (ii) quarterly distributions at a rate not in excess of the regular quarterly cash dividend most recently declared prior to the date of this Agreement with respect to each of the shares of Preferred AMB Common Stock shall and ProLogis Common Shares, respectively (it being agreed that the timing of any such quarterly distributions will be entitled to participate equally and ratably with coordinated so that, if either the holders of shares of AMB Common Stock in all dividends paid on or the shares holders of ProLogis Common Stock (other than dividends paid in Shares receives a distribution for a particular quarter prior to the form Closing Date, then the holders of ProLogis Common Shares and the holders of AMB Common Stock, Convertible Securities or Options) as if immediately respectively, shall receive a distribution for such quarter prior to each Common Stock Dividend Record the Closing Date); provided, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable however, that the record and payment dates for ProLogis’s and AMB’s distributions pursuant to this Section 4(a)(i5.10(a) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the other party’s record date for the and payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”)dates.
(b) Without Notwithstanding the consent foregoing or anything else to the contrary in this Agreement, each of the Holders representing at least AMB and ProLogis, as applicable, shall be permitted to declare and pay a majority of the then-issued and outstanding shares of Preferred Stockdividend to its stockholders or shareholders, the Corporation record date and payment date for which shall not be the close of business on the last Business Day prior to the Closing Date, distributing any amounts determined by such party (iin each case in consultation with the other party) declare, pay or set aside to be the minimum dividend required to be distributed in order for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect such party to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due qualify as a result REIT and to avoid to the extent reasonably possible the incurrence of the exercise of Options income or delivery of equity awards) under excise Tax (any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for dividend paid pursuant to this paragraph, a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock“REIT Dividend”), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If either party determines that it is necessary to declare a REIT Dividend, it shall notify the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or other party at least 20 days prior to the next Annual date for the AMB Stockholders Meeting, in the case of a declaration by AMB, or the ProLogis Shareholders Meeting, in the case of a declaration by ProLogis, and such other party shall be entitled to declare a dividend per share payable (i) in the case of AMB, to holders of AMB Common Stock, in an amount per share of AMB Common Stock equal to the quotient obtained by dividing (A) the REIT Dividend Payment declared by ProLogis with respect to each ProLogis Common Share by (B) the Exchange Ratio and (ii) in the case of ProLogis, to holders of ProLogis Common Shares, in an amount per ProLogis Common Share equal to the product of (x) the REIT Dividend declared by AMB with respect to each share of AMB Common Stock and (y) the Exchange Ratio. The record date and payment date for any dividend payable pursuant to this Section 5.10(c) shall be the close of business on the last Business Day prior to the Closing Date.
(d) If, then and to the Holder extent, the terms of such share at any series of AMB Preferred Stock or ProLogis Preferred Shares require the Close payment of Business on such Annual a dividend or other distribution by reason of a payment of a REIT Dividend Payment Record Date will be entitledor a dividend paid pursuant to Section 5.10(c), notwithstanding the related Fundamental Transaction AMB or conversionProLogis, as applicable, to receive, on or, at the Corporation’s election, before shall declare and pay any such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date required dividends or Conversion Date, as applicableother distributions.
Appears in 2 contracts
Samples: Merger Agreement (Prologis), Merger Agreement (Amb Property Lp)
Dividends. Borrower shall not, directly or indirectly, declare or pay --------- any dividends on account of any shares of any class of capital stock of Borrower now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of capital stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration other than stock or apply or set apart any sums, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing; except, that, Borrower may: ------ ----
(a) Holders declare and pay mandatory dividends required under the terms of the issued and outstanding shares of Series A Preferred Stock shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends as in effect on the terms described below:
date hereof pursuant to (i) Holders the issuance of shares of Preferred Stock shall be entitled subordinated promissory notes to participate equally and ratably with the holders of such Series A Preferred Stock to the extent permitted under Section 7.2(f) above or (ii) the forgiveness of the Indebtedness owed to Borrower by the holders of the Series A Preferred Stock arising pursuant to the loans by Borrower to such holders permitted under Section 7.6(c) below, and
(b) purchase or redeem shares of Common Stock or Series A Preferred Stock of Borrower from any party to the Stockholder Agreement pursuant to Section 4 thereof (as in all dividends paid effect on the date hereof) or purchase or redeem Common Stock or Series A Preferred Stock of Borrower pursuant to Sections 2.2, 2.4, 2.5 and 2.6 of the Management Stockholder Agreement (as in effect on the date hereof), or purchase or redeem shares of Common Stock or Series A Preferred Stock of Borrower pursuant to the Unwind Agreements (other than dividends paid as in effect on the form date hereof), provided, that as to each such purchase or redemption all of Common Stock, Convertible Securities or Optionsthe -------- ---- following conditions are satisfied as determined by Agent: (i) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
date of such purchase or redemption and after giving effect thereto, no Event of Default, or act, condition, or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred, (ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation Lender shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or have received not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent Business Days prior written notice of the Holders representing at least a majority intention of the then-issued and outstanding shares of Borrower to purchase or redeem such Common Stock or Series A Preferred Stock, which notice shall specify in reasonable detail acceptable to Agent, the Corporation shall not (i) declareparty from whom such Common Stock or Series A Preferred Stock is being purchased, pay the amount which Borrower is paying for the Common Stock or set aside for payment any dividends Series A Preferred Stock to be purchased or distributions upon any Junior Securities redeemed, the anticipated date of such purchase or (ii) repurchaseredemption, redeem the agreement pursuant to which Borrower is purchasing or otherwise acquire any Junior Securities (redeeming such shares and such other than repurchases, redemptions or acquisitions of shares of Junior Securities information with respect to equity awards thereto as Lender may reasonably request, (including in connection with “cashless” or “net” exercises of Options, payment iii) as of the exercise date of any such purchase or redemption and after giving effect thereto, Excess Availability shall be not less than $5,000,000, except to the extent that the amount paid by ------ Borrower to purchase price or redeem such Common Stock or Series A Preferred Stock is equal to or less than the amount of Optionscash or other immediately available funds which was previously paid by the holder of such stock to Borrower to purchase the stock then being purchased or redeemed by Borrower, (iv) Borrower shall not, directly or to satisfy tax withholding obligations due as a result indirectly, amend, modify, alter or change any of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements terms of the Corporation Stockholder Agreement, the Management Stockholder Agreement or its Subsidiariesthe Unwind Agreements or any agreement or instrument related thereto, except, that, ------ ---- Borrower may, after not less than ten (10) for any consideration Business Days prior written notice to Lender, amend, modify, alter or pay any moneys or make available for a sinking fund for change the redemption of any shares of such Junior Securities, unless, in each case, terms thereof so long as: (A) immediately before either (1) such amendment, modification, alteration or change does not in any manner adversely affect Lender or any rights of Lender as determined in good faith by Lender or (2) Lender has consented in writing to such amendment or modification, and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after such amendment, modification, alteration or change does not in any way relate to the taking terms of any purchases, dividends, redemptions, or other payments by Borrower in respect of any Common Stock or Series A Preferred Stock or under the terms of such actionagreements or instruments, the Corporation, or make any terms thereof more restrictive or burdensome than as in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend effect on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicabledate hereof.
Appears in 2 contracts
Samples: Loan Agreement (Pny Technologies Inc), Loan Agreement (Pny Technologies Inc)
Dividends. (a) Holders Promistar covenants and agrees that it shall not make, declare, or pay any dividend or make any other distribution in respect of the issued and outstanding shares of Preferred Stock shall be entitled to receivePromistar's capital stock, out of the assets of the Corporation legally available except for the payment of dividends, dividends on the terms described below:
(i) Holders the acquisition of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Promistar Common Stock Shares by Promistar in all dividends paid on the shares of Common Stock (other than dividends paid a fiduciary or trust capacity in the form ordinary course of Common Stockbusiness, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition regular and ordinary cash dividends on Promistar Common Shares in an amount per share not to any dividends pursuant to Section 4(a)(i), exceed the Corporation shall pay, subject to Section 4(c), if, per share amount of Promistar's most recent cash dividend as and when declared by the Board of Directors, out of funds of the Corporation legally available therefordate of this Agreement, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option dividends from wholly owned Subsidiaries of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery Promistar to Promistar or to another wholly owned Subsidiary of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”)Promistar.
(b) Without the consent of the Holders representing at least a majority of the then-issued FNB covenants and outstanding shares of Preferred Stock, the Corporation agrees that it shall not make, declare, or pay any dividend or make any other distribution in respect of FNB's capital stock, except for (i) declarequarterly cash dividends on FNB Common Stock in an amount not to exceed the greater of (A) the rate payable on such FNB Common Stock as of the date of this Agreement or (B) an amount equal to 40% of the after-tax net income of FNB for FNB's fiscal quarter immediately preceding the record date for such dividend, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchasedividends payable on FNB Preferred Stock at a rate not exceeding the rate provided for in the terms thereof, redeem or otherwise acquire any Junior Securities and (other than repurchases, redemptions or acquisitions iii) dividends from wholly owned Subsidiaries of shares of Junior Securities with respect FNB to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, FNB or to satisfy tax withholding obligations due another wholly owned Subsidiary of FNB, as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable lawapplicable.
(c) If After the Fundamental Transaction Date or Conversion Date date of this Agreement, each Party covenants and agrees to coordinate with the other Party the declaration of any share dividends in respect of Preferred Promistar Common Stock is after an Annual Dividend Payment Record Date and FNB Common Stock and the record dates and payment dates relating thereto, it being the intention of the Parties that holders of Promistar Common Stock or FNB Common Stock shall not receive two dividends, or fail to receive one dividend, for a declared Annual Dividend on any single calendar quarter with respect to their shares of Promistar Common Stock and/or FNB Common Stock and any shares of Promistar Common Stock any such holder receives in exchange therefor in the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicableMerger.
Appears in 2 contracts
Samples: Merger Agreement (Promistar Financial Corp), Merger Agreement (FNB Corp/Fl/)
Dividends. (a) Holders of the issued and outstanding shares of Preferred Stock shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, receive dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or OptionsOptions with respect to which adjustments to the Conversion Price shall be made in accordance with this Certificate) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common StockStock (including any Excess Conversion Shares and disregarding for this purpose the last sentence of Section 6(a)(i)(B)). Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such sharebasis, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends dividends, at the Dividend Rate multiplied by the Accumulated Amount on such share from and after the Issuance Date of such share until the redemption, conversion or other cancellation thereof (the “Preferred Dividends”). At the election of the Corporation with respect to each Preferred Dividend Payment Date, all Preferred Dividends accrued on a share of Preferred Stock since the immediately preceding Preferred Dividend Payment Date (as determined in accordance with the remaining provisions of this clause (ii) and clause (iii) below) shall be payable annually in arrears, either (x) if, as and when so authorized and declared by the Board of Directors, be paid in cash to the holder thereof on each Annual such Preferred Dividend Payment Date (any Preferred Dividend or portion of a Preferred Dividend paid in such manner, a “Cash Dividend”), or (y) to the extent not so paid in cash in accordance with the foregoing clause (x) automatically become Compounded Dividends and added to the Accumulated Amount for such share as of such Preferred Dividend Payment Date, commencing on . The amount of Preferred Dividends accruing with respect to any share of Preferred Stock for any day shall be determined by dividing (x) the first Annual Implied Quarterly Dividend Payment Date following the Issuance Date Amount as of such shareday by (y) the actual number of days in the Payment Period in which such day falls; provided, however, that if during any Payment Period the Dividend Rate is increased, then after the date of such increase the amount of Preferred Dividends accruing with respect to any share of Preferred Stock for any day shall be determined by dividing (x) the Implied Quarterly Dividend Amount (recalculated to take into account such increased Dividend Rate) by (y) the actual number of days in such Payment Period. Accrued Dividends, The amount of Preferred Dividends payable with respect to any share of Preferred Stock for any Payment Period shall equal the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion sum of the daily Preferred Stock following a Fundamental Transaction pursuant Dividends amounts calculated in accordance with the prior sentence of this Section 4(a)(ii) with respect to Section 7(g)(i), or upon any conversion of the such share during such Payment Period. Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 .005 being rounded upward).
(iii) The Annual Dividends may, at the option of Any election by the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual a Cash Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered Period shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP applied consistently to all Preferred Dividends paid to all Holders with respect to such Annual Dividend Payment Date; provided thatPeriod. For the avoidance of doubt, where the Corporation has determined it is understood that no Preferred Dividends may be declared and paid in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered securities or otherwise “in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shareskind.”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Preferred Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled theretothereto based on the ownership of such Preferred Stock. Each Participating Dividend or Annual Preferred Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close close of Business business on the record date designated by the Board of Directors for such dividendsdividends (each such date, a “Dividend Payment Record Date”), which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Preferred Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Preferred Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without Upon the occurrence of a Triggering Event, the Dividend Rate shall increase to the Noncompliance Additional Rate from and including the date on which the Triggering Event shall occur and be continuing through but excluding the date on which all then occurring Triggering Events are no longer continuing. The Dividend Rate shall not be increased further pursuant to this Section 4(b) for a subsequent Triggering Event occurring while the Noncompliance Additional Rate is in effect pursuant to this Section 4(b).
(c) At any time during which a Triggering Event shall occur and be continuing, without the consent of the Holders representing at least by Majority Vote, no dividends shall be declared or paid or set apart for payment, or other distributions declared or made, upon any Junior Securities, nor shall any Junior Securities be redeemed, purchased or otherwise acquired for any consideration (nor shall any moneys be paid to or made available for a majority sinking fund for the redemption of any shares of any such Junior Securities) by the Corporation, directly or indirectly (except, subject to and in accordance with the provisions of Section 6 hereof, by conversion into or exchange for Junior Securities or the payment of cash in lieu of fractional shares in connection therewith) (other than repurchases of shares of Common Stock from applicable employees, officers or directors of the then-issued Corporation, in the ordinary course of business, following such employees’, officers’ and outstanding shares directors’ termination of Preferred Stockemployment or engagement with the Corporation and its Subsidiaries). Without limiting the foregoing, without the consent of the Holders by Majority Vote, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions repurchases of shares of Junior Securities with respect to equity awards (including in connection with “cashless” Common Stock from employees, officers or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements directors of the Corporation or its Subsidiariesin the ordinary course of business) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, the Corporation, in its good faith judgment, reasonably determines that (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including including, for this purpose purpose, the aggregate Liquidation Preference Accumulated Amount and the aggregate Interim Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, Corporation would be able to pay all of its debts (including including, for this purpose, the aggregate Liquidation Preference Accumulated Amount and the aggregate Interim Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable lawLaw.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 2 contracts
Samples: Registration Rights Agreement (Resideo Technologies, Inc.), Investment Agreement (Resideo Technologies, Inc.)
Dividends. (a) Holders of the issued and outstanding shares of Preferred Stock shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Series A Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends and distributions paid (whether in the form of cash, securities, evidences of indebtedness, assets or otherwise, of the Company, any of its Subsidiaries or any other Person (or rights, options or warrants to subscribe for or acquire any of the foregoing)) on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock, the shares of Series A Preferred Stock then outstanding were converted into shares of Common Stock (in the “manner described in Section 7 below). Dividends or distributions payable pursuant to the preceding sentence shall be payable on the same date that such dividends or distributions are payable to holders of shares of Common Stock. Each such dividend or distribution shall be payable to the holders of record of shares of Series A Preferred Stock Dividend Record Date”)as they appear on the stock records of the Company at the close of business on the applicable record date, and (ii) with respect to Annual Dividends, which shall be not more than thirty (30) 60 days nor less than ten (10) 10 days preceding the applicable Annual Dividend Payment Date (such related dividend or distribution payment date, an “Annual Dividend Payment Record Date”)as shall be fixed by the Board.
(b) Without If there shall be any dividend or distribution, in which holders of Series A Preferred Stock shall be entitled to participate pursuant to this Certificate, which is in the consent form of Common Stock or rights, options or warrants to subscribe for or acquire Common Stock, then such dividend or distribution shall instead be made to such holder in the Holders representing at least a majority form of Series A Preferred Stock (with the then-issued and outstanding number of shares of Series A Preferred Stock issuable in such dividend or distribution being equal to the number of shares of Series A Preferred Stock that would be convertible under Section 7 into the number of shares of Common Stock that such holder would have received in such dividend or distribution, and, in the case of any such dividend or distribution that is in the form of rights, options or warrants to subscribe for or acquire Common Stock, the Corporation shall not a number of rights, options or warrants to subscribe for or acquire shares of Series A Preferred Stock (with (i) declaresuch number of shares of Series A Preferred Stock being equal to the number of shares of Series A Preferred Stock that would be convertible under Section 7 into the number of shares of Common Stock that such rights, pay options or set aside warrants would have covered had such rights, options or warrants been to subscribe for payment any dividends or distributions upon any Junior Securities or acquire Common Stock and (ii) repurchasesuch other terms of the rights, redeem options or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards warrants (including in connection with “cashless” exercise price and other terms) being such that such rights, option or “net” exercises of Optionswarrants have equivalent economic and other terms as the rights, payment of the exercise options or purchase price of Options, warrants to subscribe for or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred acquire Common Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 2 contracts
Samples: Securities Purchase Agreement (L-1 Identity Solutions, Inc.), Securities Purchase Agreement (L-1 Identity Solutions, Inc.)
Dividends. (a) Holders a. If and when dividends on the Class A Stock and Class C Stock are declared payable from time to time by the Board as provided in this subparagraph 3.a of paragraph B of Article IV, whether payable in cash, in property or in shares of stock of the issued Corporation, the holders of Class A Stock and outstanding shares the holders of Preferred Class C Stock shall be entitled to receiveshare equally, out on a per share basis, in such dividends, subject to the limitations described below. If dividends are declared that are payable in shares of Class A Stock or Class C Stock, such dividends shall be payable at the same rate on all classes of Common Stock and the dividends payable in shares of Class A Stock shall be payable only to holders of Class A Stock and the dividends payable in shares of Class C Stock shall be payable only to holders of Class C Stock. If the Corporation shall in any manner subdivide or combine the outstanding shares of Class A Stock or Class C Stock, the outstanding shares of the assets other class of Common Stock shall be proportionally subdivided or combined in the same manner and on the same basis as the outstanding shares of Class A Stock or Class C Stock, as the case may be, that have been subdivided or combined.
b. Subject to provisions of law and the preferences of the Corporation legally available for Preferred Stock and of any other stock ranking prior to the payment of Class A Stock or the Class C Stock as to dividends, dividends on the terms described below:
(i) Holders holders of shares of Preferred the Class A Stock and the Class C Stock shall be entitled to participate equally receive dividends at such time and ratably with in such amounts as may be determined by the holders Board and declared out of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stockany funds lawfully available therefor, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all and shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant any series shall not be entitled to this Section 4(a)(i) (share therein except as otherwise expressly provided in the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders resolution or resolutions of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date providing for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date issue of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward)series.
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 2 contracts
Samples: Merger Agreement (Cox Communications Inc /De/), Merger Agreement (Cox Enterprises Inc Et Al)
Dividends. (a) Holders Declare or pay, or permit any of the issued and outstanding shares its Subsidiaries to declare or pay, any dividends or make any other distribution on Capital Stock of Preferred Stock shall be entitled to receive, out Rayonier or any of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock its Subsidiaries (other than dividends paid or distributions payable solely in Capital Stock of Rayonier or, in the form case of Common Stockdividends paid to Rayonier or any of its Subsidiaries, Convertible Securities Capital Stock of such Subsidiary) or Options) purchase, redeem, defease or otherwise acquire or retire for value, or permit any of its Subsidiaries to purchase, redeem, defease or otherwise acquire or retire for value any of the Capital Stock of Rayonier or any of its Subsidiaries at any time outstanding except as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to provided in this Section 4(a)(i) (the “Participating Dividends”) 5.03(a). So long as no Default or Event of Default has occurred and is then continuing, Rayonier and its Subsidiaries shall be payable permitted to redeem, repurchase or otherwise acquire or retire any of their respective Capital Stock and declare and pay dividends on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common their respective Capital Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same from time to time in amounts determined by Rayonier or such Subsidiaries; provided, however, that subject to the Holders terms of the Preferred Stock.
next sentence, in no event shall Rayonier (ii) In addition to or, after any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Additional Borrower Effective Date, the “Dividend PIK Amount”), the number of shares of Common Additional Borrower) declare or pay dividends on its Capital Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less dividends (other than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities payable solely in Capital Stock of Rayonier (or, after the Additional Borrower Effective Date, the Additional Borrower)) paid in, or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises to, any period of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unlessfour Fiscal Quarters, in each casethe aggregate, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including 1) 90% of Funds From Operations for this purpose such period plus (2) the aggregate Liquidation Preference and amount of dividends permitted pursuant to the foregoing clause (1) in the preceding period of four Fiscal Quarters in excess of the aggregate Accrued Dividends amount dividends actually paid during such period. Notwithstanding the foregoing, unless at the time of the Preferred Stocksuch distribution any Event of Default has occurred and is then continuing under Section 6.01(a), Rayonier (Band, if applicable any Additional Borrower) immediately after the taking shall be permitted to declare and pay whatever amount of such action, the Corporation, in cash dividends is necessary for Rayonier to maintain its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) tax status as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable lawa REIT.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Rayonier Inc), Revolving Credit Agreement (Rayonier Inc)
Dividends. (a) Holders of the issued and outstanding shares of Preferred Stock shall be entitled to receiveThe Borrowers will not, out of the assets of the Corporation legally available for the payment of dividendsnor will they permit any other Credit Party to, declare or pay any dividends or make any distributions on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock its capital stock (other than dividends paid payable in their own capital stock) or redeem, repurchase or otherwise acquire or retire any of its capital stock at any time outstanding, including within the scope of such prohibition, any such dividends or distributions of whatever kind or type, contemplated above to any Existing Subordinated Note Indenture Additional Parties; provided, however, if (a) no Default, Event of Default or Deficiency has occurred and continues in effect or remains uncured or will result from or be caused by such dividend or distribution, and (b) Unit is in compliance with the limitations of Section 3.04 of the Existing Subordinated Notes Indenture and such dividend, distribution, redemption, repurchase or other acquisition or retirement of capital stock, together with other Restricted Payments (as that term is defined in the form Existing Subordinated Notes Indenture) does not cause or result in a breach of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders 3.04 of the Preferred Stock.
Existing Subordinated Notes Indenture, (i) any Subsidiary may declare and pay dividends or make distributions to, or redeem, purchase or otherwise acquire or retire any of its capital stock from, Unit or any Subsidiary (other than and expressly excluding the Existing Subordinated Note Indenture Additional Parties), so long as such Subsidiary is not a Wholly-Owned Subsidiary, if the dividend, distribution, redemption, purchase, acquisition or retirement, as the case may be, is made on a pro rata basis (or with respect to Unit or its Subsidiaries, better than a pro rata basis), (ii) In addition to during any fiscal year Unit may pay cash dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board in amounts not exceeding thirty (30%) of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date its Consolidated Net Income (after taxes) for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day preceding fiscal year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at Unit may make any purchases of its outstanding common stock under a stock repurchase program approved by the option Unit Board of Directors and conducted in compliance with the applicable rules and regulations of the Corporation in its sole discretionSEC, be paid and (Aiv) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash Unit may declare and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount dividends with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of its capital stock payable solely in additional shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities capital stock (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including Disqualified Stock as that term is defined in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred StockExisting Subordinated Notes Indenture), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 2 contracts
Samples: Senior Credit Agreement (Unit Corp), Senior Credit Agreement (Unit Corp)
Dividends. (a) Holders of the issued and outstanding shares of Preferred Stock shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders The holders of shares of Series C Preferred Stock shall be entitled Stock, in preference to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the and of any shares of Common Stock (other than dividends paid in capital stock of the form of Common Stock, Convertible Securities or Options) as if immediately prior Company ranking junior to each Common Stock Dividend Record Date, all shares of the Series C Preferred Stock then outstanding were converted into shares as to payment of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) dividends, shall be payable on the same date that such dividends are payable entitled to holders of shares of Common Stockreceive, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), ifwhen, as and when if declared by the Board of Directors, out of funds the assets of the Corporation Company legally available therefor, dividends in the amount per share equal to 5-1/2% per annum of the Liquidation Preference (as defined herein) of such share payable or accrued semi-annually on May 1 and November 1 in each Annual year commencing May 1, 1996 (each such date a "Dividend Payment Date Date") to the persons in whose names the Series C Preferred Stock is registered at the close of business on the April 15 and October 15 immediately preceding such Dividend Payment Date, as the case may be. Such dividends shall begin to accrue on outstanding shares of Series C Preferred Stock from the date of issuance of such shares of Series C Preferred Stock; provided, in the case of any Series C Preferred Stock issued upon exchange for the applicable Payment Period or Payment Periods dividends on each outstanding share Company's $150 million principal amount of Preferred Stock 5-1/2% Senior Convertible/Exchangeable Notes due 2000 (the “Annual Dividends”) at a rate per annum (calculated "Notes"), such dividend shall begin to accrue and accumulate from the date on which interest was last paid or duly provided for on such Notes, or if no interest has been paid or duly provided for prior to the date of such exchange, from __________, 1995. Dividends payable for any partial dividend period shall be computed on the basis of an actual 365- or 366a 360-day year, as applicable) equal to 8.00% year of twelve 30-day months. Dividends on the Liquidation Preference per share of Series C Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds shall be legally available for the payment of such thereof. Accrued but unpaid dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Series C Preferred Stock shall cumulate as of the Dividend Payment Date following the Issuance Date of on which they first become payable, and any and all such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend accrued dividends shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c)2, Annual Dividends on any share of Preferred Stock will cease to accumulate from Section 5 and after the Fundamental Transaction Date or Conversion Date, as applicableSection 7.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Tribune Co), Securities Purchase Agreement (Softkey International Inc)
Dividends. (a) The Holders of the issued and outstanding shares of Preferred Stock shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for dividends in the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference same amount per share of Preferred Stock (the “Dividend Rate”), payable in accordance as dividends are paid with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, respect to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect treating each share of Series A Preferred Stock as being equal to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to into which each such share of Series A Preferred Stock could be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata converted pursuant to the Holders provisions of shares Article 6 hereof, with such number determined as of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment determination of dividends to the holders of shares Holders of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect entitled to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (receive such date, an “Annual Dividend Payment Record Date”dividend).
(b) Without the consent As long as any shares of the Holders representing at least Series A Preferred Stock are Outstanding, no dividends shall be declared or paid or set apart for payment on Pari Passu Securities for any period unless dividends in the same amount per share as dividends are paid with respect to the Series A Preferred Stock and Common Stock (with the Series A Preferred Stock being treated along with the Common Stock in accordance with the requirements of Section 4.1(a)) have been or contemporaneously are declared and paid or declared and a majority sum sufficient for the payment thereof set apart for such payment on the Series A Preferred Stock.
(c) As long as any shares of the then-issued and outstanding shares of Series A Preferred StockStock are outstanding, the Corporation no dividends shall not (i) declare, pay be declared or paid or set aside apart for payment any dividends or distributions other distribution declared or made upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchasesthe Common Stock) nor shall any Junior Securities be redeemed, redemptions purchased or acquisitions otherwise acquired [other than a redemption, purchase or other acquisition of shares of Junior Securities with respect to equity awards Common Stock made for purposes of an employee agreement, or incentive or benefit plan (including in connection with “cashless” or “net” exercises of Optionsa stock option plan), payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) any subsidiary (all such dividends, distributions, redemptions or purchases being hereinafter referred to as a "Junior Securities Distribution")] for any consideration (or pay any moneys be paid to or make made available for a sinking fund for the redemption of any shares of any such Junior Securities, unless, in each case, (Astock) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, by the Corporation, directly or indirectly, unless in its good faith judgmenteach case an equal amount of Junior Securities Distribution per share as dividends, would be able distributions, redemptions or purchase amounts are paid with respect to pay all of its debts (including the aggregate Liquidation Preference Series A Preferred Stock, any Pari Passu Securities and the aggregate Accrued Dividends of Common Stock (with the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Series A Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on being treated along with the Preferred Common Stock but occurs on or prior to in accordance with the next Annual Dividend Payment Date, then the Holder requirements of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c4.1(a), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable).
Appears in 2 contracts
Samples: Merger Agreement (Tekinsight Com Inc), Merger Agreement (Data Systems Network Corp)
Dividends. (a) Holders The holders of the issued and then outstanding shares of Preferred Stock shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), ifonly when, as and when if declared by the Board of DirectorsDirectors of the Corporation, out of any funds of the Corporation and assets legally available therefor, dividends at the rate of 8% of the Original Issue Price (as defined below) for each share of Preferred Stock, prior and in preference to any declaration or payment of any other dividend (other than dividends on each Annual Dividend Payment Date shares of Common Stock payable in Common Stock). The right to receive dividends on Preferred Stock pursuant to the preceding sentence of this Section 2 shall not be cumulative, and no right to dividends shall accrue to holders of Preferred Stock by reason of the fact that dividends on such shares are not declared. The Corporation shall not declare, pay or set aside any dividends on shares of any other class or series of capital stock of the Corporation (other than dividends on shares of Common Stock payable in shares of Common Stock for which an adjustment is made pursuant to Subsection 5.5 or 5.6 hereof) unless (in addition to the applicable Payment Period obtaining of any consents required elsewhere in the Certificate of Incorporation) the holders of the Preferred Stock then outstanding shall first receive, or Payment Periods dividends simultaneously receive, a dividend on each outstanding share of Preferred Stock in an amount at least equal to (i) in the “Annual Dividends”case of a dividend on Common Stock or any class or series that is convertible into Common Stock, that dividend per share of such series of Preferred Stock as would equal the product of (1) the dividend payable on each share of such class or series determined, if applicable, as if all shares of such class or series had been converted into Common Stock and (2) the number of shares of Common Stock issuable upon conversion of a share of such series of Preferred Stock, in each case calculated on the record date for determination of holders entitled to receive such dividend or (ii) in the case of a dividend on any class or series that is not convertible into Common Stock, at a rate per annum (calculated on the basis share of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share such series of Preferred Stock determined by (1) dividing the “Dividend Rate”), amount of the dividend payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date each share of such share, whether class or not declared and whether or not series of capital stock by the Corporation has funds legally available for the payment original issuance price of such dividends class or series of capital stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such class or series) and shall be payable annually in arrears, if, as and when so authorized and declared (2) multiplying such fraction by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, an amount equal to the extent unpaid, shall Series A-1 Original Issue Price (as defined below) in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion the case of the Series A-1 Preferred Stock following a Fundamental Transaction pursuant or by an amount equal to Section 7(g)(i), or upon any conversion the Series A-2 Original Issue Price (as defined below) in the case of the Series A- 2 Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all declares, pays or any part sets aside, on the same date, a dividend on shares of more than one class or series of capital stock of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment DateCorporation, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be dividend payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares Preferred Stock pursuant to this Section 2 shall be calculated based upon the dividend on the class or series of Common capital stock that would result in the highest Preferred Stock (dividend. The “Series A-1 Original Issue Price” shall mean $0.40 per share, subject to appropriate adjustment in the “Common Stock Dividend Record Date”)event of any stock dividend, and (ii) stock split, combination or other similar recapitalization with respect to Annual Dividendsthe Series A-1 Preferred Stock and the “Series A-2 Original Issue Price” shall mean $0.40 per share, shall be not more than thirty (30) days nor less than ten (10) days preceding subject to appropriate adjustment in the applicable Annual Dividend Payment Date (such dateevent of any stock dividend, an “Annual Dividend Payment Record Date”).
(b) Without stock split, combination or other similar recapitalization with respect to the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Series A-2 Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion“Original Issue Price” shall mean, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after Series A- l Original Issue Price or the Fundamental Transaction Date or Conversion Date, as applicableSeries A-2 Original Issue Price.
Appears in 2 contracts
Samples: Contribution and Exchange Agreement (Continental Grain Co), Contribution and Exchange Agreement (Continental Grain Co)
Dividends. (a) Holders of the issued and outstanding shares of Preferred Stock shall be entitled to receive, out of the assets of and the Corporation legally available for the payment of dividendsshall pay, dividends on the terms described below:
(i) Holders of shares of the Series A Non-Voting Preferred Stock shall be entitled (on an as-if-converted-to-Common-Stock basis, without regard to participate equally the Beneficial Ownership Limitation (as defined below)) equal to and ratably with in the holders of shares of Common Stock same form, and in all the same manner, as dividends paid on the shares of Common Stock (other than dividends paid on shares of the Common Stock payable in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each actually paid on shares of the Common Stock Dividend Record Datewhen, all shares of Preferred Stock then outstanding were converted into shares as and if such dividends (other than dividends payable in the form of Common Stock. Dividends payable ) are paid on shares of the Common Stock; provided, however, in no event shall Holders of Series A Non-Voting Preferred Stock be entitled to receive the “rights” distributed pursuant to this Section 4(a)(i) that certain Contingent Value Rights Agreement dated as of October 7, 2024 by and between the Corporation and Broadridge Corporation Issuer Solutions, LLC a Pennsylvania limited liability company, as may be amended from time to time (the “Participating DividendsCVR Agreement”) ), or any amounts paid under the CVR Agreement. In addition, Holders shall be payable on the same date that such dividends are payable entitled to holders of shares of Common Stockreceive, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods payment-in-kind (“PIK”) dividends on each outstanding share of Series A Non-Voting Preferred Stock (the “Annual Dividends”) Stock, accruing at a rate equal to five percent (5.0%) per annum (calculated payable in shares of Series A Non-Voting Preferred Stock on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% date that is 180 days after the date of the Liquidation Preference per share original issuance of such Series A Non-Voting Preferred Stock or such earlier date that that Holder may convert any portion of the Series A Non-Voting Preferred Stock to Common Stock. Other than as set forth in the previous two sentences, no other dividends shall be paid on shares of Series A Non-Voting Preferred Stock, and the Corporation shall pay no dividends (the “Dividend Rate”), other than dividends payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares form of Common Stock, or (C) by delivery of any combination of cash and on shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount unless it simultaneously complies with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAPprevious two sentences.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 2 contracts
Samples: Share Exchange Agreement (Virios Therapeutics, Inc.), Share Exchange Agreement (Virios Therapeutics, Inc.)
Dividends. (a) Holders of the issued and outstanding shares of The Series A Preferred Stock shall be is entitled to receive, out of legally available funds, preferential cumulative dividends as calculated from April 10, 2009, at the assets annual rate of ten percent (10%) of the Original Issue Price (the “Preferred Dividends”), payable when and if declared by the Board of Directors of the Corporation. Preferred Dividends shall cease to accrue on shares of Series A Preferred Stock on the date of their conversion.
(b) Preferred Dividends shall begin to accrue on outstanding shares of Series A Preferred Stock and to accumulate from the issuance date of such shares until paid whether or not earned or declared. Preferred Dividends shall accrue whether or not there shall be (at the time any such dividend becomes payable or at any other time) profits, surplus or other funds of the Corporation legally available for the payment of dividends, dividends on the terms described below:.
(ic) Holders No dividend shall be declared on any other series or class or classes of shares of stock as to which the Series A Preferred Stock shall be entitled ranks on a parity or prior as to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stockor liquidation, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of including without limitation shares of Common Stock, in respect of any period, nor shall any shares of any such series or class be redeemed, purchased or otherwise acquired for any consideration (or any money be paid into any sinking fund or otherwise set apart for the purchase of any such shares), unless there shall have been or contemporaneously are declared and no paid on all shares of the Series A Preferred Stock at the time outstanding all (whether or not earned or declared) accrued and unpaid dividends for all periods coinciding with or ending before such dividend, redemption, purchase, acquisition or payment. Preferred Dividends shall also be payable upon the final distribution date relating to holders the dissolution, liquidation or winding up of the Corporation and the initial public offering of the Common Stock as provided in Section 5(b).
(d) The Corporation shall have the option to pay the Preferred Dividend in cash or in shares of Common Stock unless or in a combination of cash and Common Stock. If the full dividends contemplated by this Section 4(a)(i) are paid at the same time Corporation elects to the Holders of pay the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) then the number of shares issuable shall be determined by delivery dividing the amount of any combination of cash and shares of Common Stock; provided that, if the Preferred Dividend payable by the Conversion Price in effect on the third Business Day prior to the date on which such Preferred Dividend shall have been declared. The Corporation elects may elect to pay all or any part of the total amount of an Annual such Preferred Dividend in shares of Common Stock (only if it makes such amount with respect payment ratably to all holders of Series A Preferred Stock. “Business Day” means any Annual Dividend Payment Dateday except Saturday, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered Sunday and any day which shall be determined a federal legal holiday in the United States or a day on which banking institutions in the State of New York are authorized or required by dividing the Dividend PIK Amount by the 10-Day VWAP with respect law or other government action to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAPclose.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 2 contracts
Samples: Securities Exchange Agreement (Cybra Corp), Securities Exchange Agreement (Cybra Corp)
Dividends. (a) Each Holder of Series P Preferred Stock, in preference and priority to the Holders of all other classes of stock other than Holders of the issued and outstanding shares of Company’s Series M Convertible Preferred Stock (the “Series M Preferred”) and the Series Q Convertible Preferred Stock (the “Series Q Preferred”), shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior respect to each Common Stock Dividend Record Date, all shares share of Series P Preferred Stock then outstanding were converted into shares and held by such Holder of Common Series P Preferred Stock. Dividends payable pursuant to this Section 4(a)(i, dividends, commencing from the date of issuance of such share of Series P Preferred Stock, at the rate of eight percent (8%) per annum of the Series P Stated Value (the “Participating Series P Preferred Dividends”) ); provided, however, that from and after the Company’s issuance of not less than 36,000,000 shares of Series Q Preferred, the Series P Preferred dividend rate shall be payable reduced to six percent (6%) per annum. The Series P Preferred Dividends shall be cumulative, whether or not earned or declared, and shall be paid quarterly in arrears on the same date that first day of February, May, August and November in each year. At the election of the Company, the Series P Preferred Dividends shall be paid by (a) issuing each Holder of Series P Preferred Stock such dividends are payable to holders number of shares of Common StockSeries P Preferred Stock equal to the Series P Preferred Dividend divided by the Series P Stated Value (“PIK Shares”), and no or (b) cash out of legally available funds therefor. Any election by the Company to pay dividends in shares of Series P Preferred Stock or cash shall be made uniformly with respect to all outstanding shares of Series P Preferred Stock for a given dividend period.
(b) No dividends shall be payable to holders of shares of paid on any Common Stock unless of the full dividends contemplated by this Section 4(a)(iCompany or any other capital stock of the Company other than the Series M Preferred and the Series Q Preferred during any fiscal year of the Company until all outstanding Series P Preferred Dividends (with respect to the current fiscal year and all prior fiscal years) are shall have been paid at the same time or declared and set apart for payment to the Holders of the Series P Preferred Stock.
(iic) In addition to the event that the Company shall at any dividends pursuant to Section 4(a)(i)time pay a dividend on the Common Stock or any other class or series of capital stock of the Company other than the Series M Preferred and the Series Q Preferred, the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends mayCompany shall, at the option same time, pay to each Holder of Series P Preferred Stock a dividend equal to the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of dividend that would have been payable to such Holder if the shares of Series P Preferred Stock held by such Holder had been converted into Common Stock, or (C) by delivery Stock on the date of any combination determination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares Holders of Common Stock (such amount with respect entitled to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for receive such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 2 contracts
Samples: Voting, Consent, Amendment and Waiver Agreement (Velocity Express Corp), Consent, Amendment and Waiver Agreement (Velocity Express Corp)
Dividends. (a) Holders The holders of the issued Series F Preferred Stock, Series E Preferred Stock, Series D Preferred Stock and outstanding shares of Series C Preferred Stock shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, receive dividends prior and in preference to any dividend on the terms described below:
Common Stock, Series A Preferred Stock or Series B Preferred Stock at the rate of (i) Holders with respect to holders of shares Series F Preferred Stock, 8% of the Series F Liquidation Preference (as defined herein) (as adjusted for any stock dividends, combinations or splits with respect to such shares) per annum, (ii) with respect to holders of Series E Preferred Stock, 8% of the Series E Liquidation Preference (as defined herein) (as adjusted for any stock dividends, combinations or splits with respect to such shares) per annum, (iii) with respect to holders of Series D Preferred Stock, 8% of the Series D Liquidation Preference (as defined herein) (as adjusted for any stock dividends, combinations or splits with respect to such shares) per annum and (iv) with respect to holders of Series C Preferred Stock, 8% of the Series C Liquidation Preference (as defined herein) (as adjusted for any stock dividends, combinations or splits with respect to such shares) per annum, payable out of funds legally available therefor; such dividends shall be payable only when, as, and if declared by two-thirds (2/3) of the Board of Directors (including the directors designated by the holders of Series B-6 Preferred Stock under Section 5 of this Article IV(B)) and shall be cumulative. The holders of Series B-6 Preferred Stock shall be entitled to participate equally receive dividends after the dividends described in the preceding sentence shall have been declared and ratably with the holders of shares of Common Stock paid and prior and in all dividends paid preference to any dividend on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record DateSeries A Preferred Stock, all shares of Series X-x Preferred Stock, Series B-2 Preferred Stock, Series B-3 Preferred Stock, Series B-4 Preferred Stock, Series B-5 Preferred Stock then outstanding were converted into shares or Series B-7 Preferred Stock, at the rate of Common Stock. Dividends payable pursuant to this Section 4(a)(i10% of the Series B-6 Liquidation Preference (as defined herein) (the “Participating Dividends”as adjusted for any stock dividends, combinations or splits with respect to such shares) shall be per annum, payable on the same date that out of funds legally available therefor; such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i)only when, the Corporation shall payas, subject to Section 4(c), if, as and when if declared by the Board of DirectorsDirectors and shall be noncumulative.
(b) The holders of Series B-5 Preferred Stock shall be entitled to receive dividends after the dividends described in Section 1(a) above shall have been declared and paid and prior and in preference to any dividend on the Common Stock, Series A Preferred Stock, Series X-x Preferred Stock, Series B-2 Preferred Stock, Series B-3 Preferred Stock, Series B-4 Preferred Stock or Series B-7 Preferred Stock, at the rate of 10% of the Series B-5 Liquidation Preference (as defined herein) (as adjusted for any stock dividends, combinations or splits with respect to such shares) per annum, payable out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods . Such dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrearsonly when, ifas, as and when so authorized and if declared by the Board of DirectorsDirectors and shall be noncumulative.
(c) The holders of Series X-x Preferred Stock, on each Annual Dividend Payment DateSeries B-2 Preferred Stock, commencing Series B-3 Preferred Stock and Series B-4 Preferred Stock shall be entitled to receive dividends after the dividends described in Sections 1(a) and 1(b) above shall have been declared and paid and prior and in preference to any dividend on the first Annual Dividend Payment Date following Common Stock, Series A Preferred Stock, and Series B-7 Preferred Stock at the Issuance Date rate of (i) with respect to holders of Series X-x Preferred Stock, 10% of the Series X-x Liquidation Preference (as defined herein) (as adjusted for any stock dividends, combinations or splits with respect to such shareshares), (ii) with respect to holders of Series B-2 Preferred Stock, 10% of the Series B-2 Liquidation Preference (as defined herein) (as adjusted for any stock dividends, combinations or splits with respect to such shares), (iii) with respect to holders of Series B-3 Preferred Stock, 10% of the Series B-3 Liquidation Preference (as defined herein) (as adjusted for any stock dividends, combinations or splits with respect to such shares) and (iv) with respect to holders of Series B-4 Preferred Stock, 10% of the Series B-4 Liquidation Preference (as defined herein) (as adjusted for any stock dividends, combinations or splits with respect to such shares), per annum, payable out of funds legally available therefor. Accrued Dividends, to the extent unpaid, Such dividends shall in all cases be payable upon a only when, as, and if declared by the Board of Directors and shall be noncumulative.
(d) The holders of Series A-6 Preferred Stock shall be entitled to receive dividends after the dividends described in Sections 1(a), 1(b) and 1(c) above shall have been declared and paid and prior and in preference to any dividend on the Common Stock, Series Al-3 Preferred Stock, Series A-4 Preferred Stock, Series A-5 Preferred Stock or Series B-7 Preferred Stock, at the rate of 10% of the Series A-6 Liquidation pursuant Preference (as defined herein) (as adjusted for any stock dividends, combinations or splits with respect to Section 5such shares) per annum, upon a conversion payable out of funds legally available therefor. Such dividends shall be payable only when, as, and if declared by the Board of Directors and shall be noncumulative.
(e) The holders of Series Al-3 Preferred Stock, Series A-4 Preferred Stock and Series A-5 Preferred Stock shall be entitled to receive dividends after the dividends described in Sections 1(a), 1(b), 1(c) and 1(d) above shall have been declared and paid and prior and in preference to any dividend on the Common Stock and Series B-7 Preferred Stock at the rate of (i) with respect to holders of Series A-l Preferred Stock, 10% of the Series A-l Liquidation Preference (as defined herein) (as adjusted for any stock dividends, combinations or splits with respect to such shares), (ii) with respect to holders of Series A-2 Preferred Stock, 10% of the Series A-2 Liquidation Preference (as defined herein) (as adjusted for any stock dividends, combinations or splits with respect to such shares), (iii) with respect to holders of Series A-3 Preferred Stock, 10% of the Series A-3 Liquidation Preference (as defined herein) (as adjusted for any stock dividends, combinations or splits with respect to such shares), (iv) with respect to holders of Series A-4 Preferred Stock, 10% of the Series A-4 Liquidation Preference (as defined herein) (as adjusted for any stock dividends, combinations or splits with respect to such shares) and (iv) with respect to holders of Series A-5 Preferred Stock, 10% of the Series A-5 Liquidation Preference (as defined herein) (as adjusted for any stock dividends, combinations or splits with respect to such shares), per annum, payable out of funds legally available therefor. Such dividends shall be payable only when, as, and if declared by the Board of Directors and shall be noncumulative.
(f) The holders of Series B-7 Preferred Stock shall be entitled to receive dividends after the dividends described in Sections 1(a), 1(b), 1(c), 1(d) and 1(e) above shall have been declared and paid and prior and in preference to any dividend on the Common Stock at the rate of 10% of the Series B-7 Liquidation Preference (as defined herein) (as adjusted for any stock dividends, combinations or splits with respect to such shares) per annum, payable out of funds legally available therefor. Such dividends shall be payable only when, as, and if declared by the Board of Directors and shall be noncumulative.
(g) No dividends (other than those payable solely in the Common Stock of the Corporation) shall be paid on any Common Stock of the Corporation during any fiscal year of the Corporation until dividends on the Preferred Stock following shall have been paid or declared in the manner set forth in Sections 1(a) through 1(f) above, and set apart during that fiscal year. After the payment to the holders of Preferred Stock of the full preferential amounts specified in Sections 1(a) through 1(f) above, any remaining assets of the Corporation distributed as a Fundamental Transaction pursuant to Section 7(g)(i)dividend shall be distributed with equal priority and pro rata among the holders of the Corporation’s Common Stock and the Preferred Stock, or upon any treating in such circumstances each share of Preferred Stock as if it had been converted into Common Stock at the then applicable conversion rate.
(h) In the event of a conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder 4, any declared and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend unpaid dividends shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close election of Business on the record date designated holder in cash or Common Stock at its then fair market value, as determined by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”)Directors.
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 2 contracts
Samples: Stock Acquisition Agreement (Active Network Inc), Stock Acquisition Agreement (Active Network Inc)
Dividends. (a) Holders of In the issued and outstanding event that a distribution with respect to the shares of Preferred CCIT II Common Stock permitted under the terms of this Agreement has a record date prior to the REIT Merger Effective Time and has not been paid prior to the Closing Date, such distribution shall be paid to the holders of such shares of CCIT II Common Stock on the Closing Date immediately prior to the REIT Merger Effective Time. In the event that a distribution with respect to the shares of GCEAR Common Stock permitted under the terms of this Agreement has a record date prior to the REIT Merger Effective Time and has not been paid prior to the Closing Date, such distribution shall be paid to the holders of such shares of GCEAR Common Stock on the Closing Date immediately prior to the REIT Merger Effective Time. CCIT II shall coordinate with GCEAR on the declaration, setting of record dates and payment dates of dividends on CCIT II Common Stock so that holders of CCIT II Common Stock (i) do not receive dividends on both CCIT II Common Stock and GCEAR Common Stock received in the REIT Merger in respect of a single distribution period or fail to receive a dividend on either CCIT II Common Stock or GCEAR Common Stock received in the REIT Merger in respect of a single distribution period or (ii) do not receive both a dividend permitted by the proviso to Section 6.2(b)(iii) on GCEAR Common Stock and a dividend permitted by the proviso to Section 6.1(b)(iii) on CCIT II Common Stock received in the REIT Merger or fail to receive either a dividend permitted by the proviso to Section 6.2(b)(iii) on GCEAR Common Stock or a dividend permitted by the proviso to Section 6.1(b)(iii) on CCIT II Common Stock received in the REIT Merger.
(b) In the event that either CCIT II or GCEAR shall declare or pay any dividend or other distribution that is expressly permitted pursuant to the proviso at the end of Section 6.1(b)(iii) or Section 6.2(b)(iii), respectively, it shall notify the other Party at least twenty (20) days prior to the Closing Date, and such other Party shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
declare a dividend per share payable (i) Holders in the case of shares of Preferred Stock shall be entitled CCIT II, to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of CCIT II Common Stock, Convertible Securities or Optionsin an amount per share of CCIT II Common Stock equal to the product of (A) as if immediately prior the dividend declared by GCEAR with respect to each share of GCEAR Common Stock Dividend Record Dateby (B) the Exchange Ratio, all shares and (ii) in the case of Preferred Stock then outstanding were converted into shares GCEAR, to holders of GCEAR Common Stock, in an amount per share of GCEAR Common Stock equal to the quotient obtained by dividing (A) the dividend declared by CCIT II with respect to each share of CCIT II Common Stock by (B) the Exchange Ratio. Dividends The record date and time and payment date and time for any dividend payable pursuant to this Section 4(a)(i) (the “Participating Dividends”7.8(b) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Closing Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 2 contracts
Samples: Merger Agreement (Cole Office & Industrial REIT (CCIT II), Inc.), Merger Agreement (Griffin Capital Essential Asset REIT, Inc.)
Dividends. (a) Holders The holders of the issued and outstanding shares of Series A Preferred Stock shall will be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled receive in preference to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common any Junior Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), ifwhen, as and when if declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment thereof, dividends at the annual rate of such 8% of Liquidation Value (as defined below). Such dividends will be cumulative, will accumulate (whether or not declared) from the date of issuance (the "Issue Date") and shall will be payable annually on the last day of each calendar quarter (each such date being a "dividend payment date" and each such quarterly period being a "dividend period"), commencing September 30, 1998. The dividend amount payable in arrears, if, as respect of each share of Series A Preferred Stock on each dividend payment date (the "Dividend Amount") will be computed by multiplying the applicable annual percentage rate set forth above by a fraction the numerator of which will be the number of days in the applicable dividend period and when the denominator of which will be 365 and multiplying the amount so authorized and declared obtained by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward)Value.
(iiib) The Annual Dividends with respect to the Series A Preferred Stock may, at the option election of the Corporation in its sole discretionCompany, be paid (A) in cash, (B) cash or in kind by delivery the issuance of additional shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if Series A Preferred Stock to the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the holders entitled hereto. The number of shares of Common Series A Preferred Stock remitted to be delivered the holders in any dividend payment shall be determined by dividing equal to the Dividend PIK Amount divided by the 10-Day VWAP Liquidation Value (as defined in Section 4 below). Notwithstanding anything to the contrary herein, the issuance of shares of Series A Preferred Stock for the payment of dividends shall not require the vote of the holders of Series A Preferred Stock.
(c) All dividends paid with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common the Series A Preferred Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”Section 3(a) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall hereof will be paid pro rata to the Holders of shares of Preferred Stock holders entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 2 contracts
Samples: Subscription Agreement (Newlight Associates L P), Subscription Agreement (Newlight Associates L P)
Dividends. (a) Holders From and after the date of the issued and outstanding issuance of any shares of Series B Preferred Stock, dividends at the rate per annum of eight percent (8%) of the Original Issue Price shall accrue on such shares of Series B Preferred Stock shall be entitled (subject to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid appropriate adjustment in the form event of Common any stock dividend, stock split, combination or other similar recapitalization with respect to the Series B Preferred Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Series B Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend RateDividend”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Series B Preferred Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such sharedaily, whether or not declared and whether shall be cumulative and non-compounding; provided however, that except as set forth in the following sentence of this Section 5(a) or not the Corporation has funds legally available for the payment in Section 1(a) or Section 6(a) of this Article FOURTH, such dividends and Series B Preferred Dividends shall be payable annually in arrearsonly when, ifas, as and when so authorized and if declared by the Board of DirectorsDirectors and the Corporation shall be under no obligation to pay such Series B Preferred Dividends. The Corporation shall not declare, pay or set aside any dividends on shares of Series A Preferred Stock, Seed Preferred Stock or Common Stock of the Corporation (other than dividends on shares of Common Stock payable in shares of Common Stock) unless (in addition to the obtaining of any consents required elsewhere in the Certificate of Incorporation) the holders of the Series B Preferred Stock then outstanding shall first receive, or simultaneously receive, a dividend on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date outstanding share of such share. Accrued Dividends, Series B Preferred Stock in an amount at least equal to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion amount of the aggregate Series B Preferred Dividends then accrued on such share of Series B Preferred Stock following a Fundamental Transaction pursuant and not previously paid. The Series B Preferred Dividend shall continue to accrue even if the Corporation does not have lawfully available funds to pay such Series B Preferred Dividend at the time of accrual.
(b) No dividend shall be declared or paid on shares of Series A Preferred Stock unless the provisions of Section 7(g)(i), or upon any conversion 5(a) of this Article FOURTH above are satisfied. From and after the date of the issuance of any shares of Series A Preferred Stock, dividends at the rate per annum of 8% of the Series A Original Issue Price shall accrue on such shares of Series A Preferred Stock pursuant (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series A Preferred Stock) (the “Series A Preferred Dividend”). Series A Preferred Dividends shall accrue quarterly, whether or not declared but shall be non-cumulative and non-compounding; provided however, that except as set forth in the following sentence of this Section 6(a)(i5(b) or in Section 1(a) or Section 6(a)(ii). Annual Dividend payments 6(a) of this Article FOURTH, such Series A Preferred Dividends shall be aggregated per Holder payable only when, as, and if declared by the Board of Directors and the Corporation shall be made under no obligation to the nearest cent (with $0.005 being rounded upward).
(iii) pay such Series A Preferred Dividends. The Annual Dividends mayCorporation shall not declare, at the option pay or set aside any dividends on shares of Seed Preferred Stock or Common Stock of the Corporation (other than dividends on shares of Common Stock payable in its sole discretionshares of Common Stock) unless (in addition to the obtaining of any consents required elsewhere in the Certificate of Incorporation) the holders of the Series A Preferred Stock then outstanding shall first receive, be or simultaneously receive, a dividend on each outstanding share of Series A Preferred Stock in an amount at least equal to the sum of (i) the amount of the aggregate Series A Preferred Dividends then accrued on such share of Series A Preferred Stock and not previously paid and (ii) (A) in cashthe case of a dividend on Common Stock or Seed Preferred Stock, that dividend per share of Series A Preferred Stock as would equal the product of (B1) by delivery the dividend payable on each share of such class or series determined, if applicable, as if all shares of Common Stock, such class or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of series had been converted into Common Stock and (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A2) the number of shares of Common Stock that are permitted to be delivered issuable upon conversion of a share of Series A Preferred Stock, in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be each case calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated for determination of holders entitled to receive such dividend or (B) in the case of a dividend on any class or series that is not convertible into Common Stock, at a rate per share of Series A Preferred Stock determined by (1) dividing the amount of the dividend payable on each share of such class or series of capital stock by the Board original issuance price of Directors for such dividendsclass or series of capital stock (subject to appropriate adjustment in the event of any stock dividend, which (i) stock split, combination or other similar recapitalization with respect to Participating Dividendssuch class or series) and (2) multiplying such fraction by an amount equal to the Series A Original Issue Price); provided that, if the Corporation declares, pays or sets aside, on the same date, a dividend on shares of more than one class or series of capital stock of the Corporation, the dividend payable to the holders of Series A Preferred Stock pursuant to this Section 1 shall be calculated based upon the dividend on the class or series of capital stock that would result in the highest Series A Preferred Stock dividend.
(c) No dividend shall be declared or paid on shares of Common Stock unless the provisions of Section 5(a) and 5(b) above are satisfied and the Corporation shall declare and pay at the same day as time to each holder of Seed Preferred Stock a dividend equal to $0.052 per share of Seed Preferred Stock per annum, plus all dividends, previously declared and unpaid on the Seed Preferred Stock (respectively, the “Seed Preferred Dividend” and together with the Series A Preferred Dividend and the Series B Preferred Dividend, the “Preferred Dividend”), plus the dividend which would have been payable to such holder if the shares of Seed Preferred Stock held by such holder had been converted into Common Stock on the record date for the payment determination of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect entitled to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (receive such date, an “Annual Dividend Payment Record Date”)dividend.
(bd) Without the consent The calculation of the Holders representing at least a majority applicable Preferred Dividend shall be computed (y) on the number of the then-days since such Preferred Stock respectively, was issued and outstanding shares (z) and shall include any accrued but unpaid dividends thereon. Prior to payment of Preferred Stockany dividend pursuant to this Section 5 of this Article FOURTH, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions provide a statement to each holder of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment Preferred Stock as of the exercise or purchase price date of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares declaration of such Junior Securitiesdividend, unless, in each case, (A) immediately before and after indicating the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends amount of the Preferred Stock)Dividend as applicable, (B) immediately after owing on each such share and stipulating an appropriate mechanism by which the taking holder of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a may contest the calculation of the Preferred Dividend.
(e) No dividends shall be declared Annual Dividend or paid on the Common Stock or Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, except as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided set forth in this Section 4(c1(a), Annual Dividends on any share Section 6(a) or Section 5 of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicablethis Article FOURTH.
Appears in 2 contracts
Samples: Preferred Stock Purchase Warrant (Genocea Biosciences, Inc.), Preferred Stock Purchase Warrant (Genocea Biosciences, Inc.)
Dividends. (a) Holders The holders of the issued and outstanding shares of Series B Preferred Stock shall be are entitled to receivereceive stated cash dividends from the corporation at an annual rate of $0.60 per share, out and no more, subject to declaration by the Board of the assets of the Corporation Directors, at its sole discretion, from funds legally available for the payment of dividends, dividends . Dividends on the terms described below:
(i) Holders of shares of Series B Preferred Stock shall will not be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid cumulative on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stocka year-to-year basis. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall will be payable on as they are declared by the same date that Board of Directors at such dividends are payable to holders of shares of Common Stocktime or times as it elects, and no dividends shall be payable holder of Series B Preferred Stock will have any right to holders of shares of Common Stock receive any dividend unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when until that dividend has been declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not The stated annual dividend may be declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually paid in arrearsincrements during each calendar year. In connection with each dividend payment, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be may set a record date in advance of the same day as the record payment date for the payment purpose of dividends to determining the holders of shares of Common Series B Preferred Stock who are entitled to receive that dividend. No cash dividend shall be declared or paid during any calendar year on the corporation’s common stock unless and until there shall have been paid in full to the holders of Series B Preferred Stock (the “Common Stock Dividend Record Date”or set apart for purposes of such payment), and (ii) without preference or priority as between such shares of Series B Preferred Stock or, except as provided below with respect to Annual Dividendsthe corporation’s Series A Preferred Stock, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares as to any other series of Preferred Stock, not less than a pro rata portion of the Corporation stated annual dividend thereon for that calendar year, at the rate provided therefor, through the date on which the corporation proposes to pay the cash dividend on the common stock. Shares of Series B Preferred Stock shall not (i) declare, pay or set aside for payment any participate in dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities paid with respect to equity awards (including in connection with “cashless” any other class or “net” exercises of Options, payment series of the exercise corporation’s capital stock. No cash dividend shall be paid during any calendar year on either the corporation’s Series A or purchase price of Options, or Series B Preferred Stock unless and until there shall have been paid in full to satisfy tax withholding obligations due as a result the holders of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of other such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share Series of Preferred Stock is after (or declared and set apart for purposes of such payment), without preference or priority as between the shares included in such other series, a cash dividend in an Annual Dividend Payment Record Date for a declared Annual Dividend amount per share that bears the same proportionate relationship to the stated annual dividend on such other series as the amount proposed to be paid per share on the Preferred Stock but occurs on or prior first series bears to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business stated annual dividend on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicablethat first series.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization and Merger (Cardinal Bankshares Corp), Agreement and Plan of Reorganization and Merger (Mountainbank Financial Corp)
Dividends. (a) From after the Effective Date, the Holders of the issued and outstanding shares of Preferred Stock shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividendson a quarterly basis with payments to occur no later than 75 days in arrears from each reporting period (each, dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock a “Dividend Record Payment Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directorsa year-end reconciliation, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Class B Preferred Stock (the “Annual Dividends”) at a rate per annum equal to the greater of (A) five percent (5%) of GAAP net income of the MTIX operating business calculated on the basis of an actual 365- or 366-day for a particular calendar year, as applicableand (B) equal to 8.00% of the Liquidation Preference a $2.50 per share of Class B Preferred Stock (in either case, the “Dividend RatePercentage”), payable . All dividends provided for in accordance with Section 4(a)(iiiclause (i) below. Subject to Section 4(c), Annual Dividends above shall accrue and accumulate on a daily basis from the Issuance Date of such sharebe cumulative, whether or not declared and whether earned or not declared, accruing on an annual basis from the Effective Date. In the event that the Corporation has shall not have funds legally available for for, or is otherwise prohibited by the payment of NRS, or any other applicable law, from paying any amounts under this Section 3(a), the obligation to pay such dividends and amounts shall be payable annually in arrears, if, as carried forward and fulfilled when such funds are legally available and the Corporation is permitted to do so authorized and declared by under the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, NRS or any other applicable law.
(b) All dividends paid with respect to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion shares of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Class B Preferred Stock pursuant to Section 6(a)(i3(a) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend .
(i) No full dividends shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated declared by the Board of Directors or paid or set apart for payment by the Corporation on any Parity Securities for any period unless full cumulative dividends have been or contemporaneously are declared and paid in full, or declared and a sum in cash set apart sufficient for such dividendspayment, which (i) with respect on the Class B Preferred Stock for all periods terminating on or prior to Participating Dividendsthe date of payment of such full dividends on such Parity Securities. If any dividends are not so paid in full, all partial dividends declared upon shares of the Class B Preferred Stock and any Parity Securities shall be declared pro rata so that the amount of dividends declared per share on the Class B Preferred Stock and such Parity Securities shall in all cases bear to each other the same day as ratio that accrued dividends per share on the record date for the payment of dividends Class B Preferred Stock and such Parity Securities bear to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and each other.
(ii) with respect So long as any share of the Class B Preferred Stock is outstanding, the Corporation shall not declare, pay or set apart for payment any dividend on any of the Junior Securities, or make any payment on account of, or set apart for payment money for a sinking or other similar fund for, the purchase, redemption or other retirement of, any of the Junior Securities or any warrants, rights, calls or options exercisable for or convertible into any of the Junior Securities, whether in cash, obligations or shares of the Corporation or other property, and shall not permit any corporation or other entity directly or indirectly controlled by the Corporation to Annual Dividendspurchase or redeem any of the Junior Securities or any such warrants, shall be not more rights, calls or options (other than thirty (30in exchange for Junior Securities) days nor less than ten (10) days preceding unless full cumulative dividends determined in accordance herewith on the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”)Class B Preferred Stock have been paid in full for all periods ended prior to the date of such.
(biii) Without the consent So long as any share of the Holders representing at least a majority of the then-issued and outstanding shares of Class B Preferred StockStock is outstanding, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities except with respect to equity awards (including in connection with “cashless” dividends as permitted by Section 3(c)(i)) make any payment on account of, or “net” exercises of Optionsset apart for payment money for a sinking or other similar fund for, payment the purchase, redemption or other retirement of, any of the exercise Parity Securities or purchase price of Optionsany warrants, rights, calls or to satisfy tax withholding obligations due as a result options exercisable for or convertible into any of the exercise of Options Parity Securities, whether in cash, obligations or delivery of equity awards) under any equity incentive plan or similar arrangements shares of the Corporation or its Subsidiariesother property, and shall not permit any corporation or other entity directly or indirectly controlled by the Corporation to purchase or redeem any of the Parity Securities or any such warrants, rights, calls or options.
(d) Dividends payable on the Class B Preferred Stock for any consideration or pay any moneys or make available period less than a year shall be computed on the basis of a 360-day year of twelve 30-day months and, for periods not involving a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such actionfull calendar month, the fair value actual number of days elapsed (not to exceed 30 days).
(e) Dividends payable on the Class B Preferred Stock shall be payable in cash or in Common Stock at the discretion of the Corporation’s assets would exceed . In the sum event that the Corporation elects to pay the dividends in Common Stock, it shall issue that number of its debts (including for this purpose shares of Common Stock determined by dividing the aggregate Liquidation Preference and the aggregate Accrued Dividends amount of the Preferred Stock)dividend by the average price per share for the ten (10) trading days immediately preceding the determination date as reported by Bloomberg, (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.L.P.
Appears in 2 contracts
Samples: Share Exchange Agreement (DPW Holdings, Inc.), Share Exchange Agreement (Avalanche International, Corp.)
Dividends. (a) Holders The holders of the issued and outstanding shares of Preferred Stock OP Units shall be entitled to receive, out of from funds which the assets of the Corporation legally General Partner determines to be available for the payment of dividendsdistribution as provided in Section 7.1, dividends on the terms described below:
(i) Holders of shares of “Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid per Preferred OP Unit at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock annual rate (the “Annual DividendsPreferred Rate”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00the 10-year United States Treasury bond yield in effect on January 2nd of such calendar year (as reported by Bloomberg L.P. and its successors or, if Bloomberg L.P. and its successors no longer report such yield, then as reported by any other comparable service that reports such yield) plus 239 basis points; provided, however, that the Annual Preferred Rate shall not be less than 6.5% of the Liquidation Preference per share of nor more than 9%. Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends for each year shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directorsequal installments, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends quarterly distributions to the holders of shares Common OP Units, and shall be paid when such quarterly distributions are paid to Common OP Units holders of record as of the accrual date; provided, however, that:
(a) if the payment date for distributions to Common OP Unit holders is more than twenty (20) days after the record date, the Preferred Dividends shall be paid on or before the twentieth (20th) day following the record date,
(b) if distributions to holders of Common Stock (the “Common Stock Dividend Record Date”)OP Units are made less frequently than quarterly, then Preferred Dividends shall accrue on each March 31, June 30, September 30 and (ii) with respect to Annual Dividends, December 31 and shall be not more than thirty (30) days nor less than paid within ten (10) days preceding thereafter to holders of record as of the applicable Annual Dividend Payment Date (such accrual date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.and
(c) If if distributions to holders of Common OP Units are made more frequently than quarterly, the Fundamental Transaction Date or Conversion Date Preferred Dividends shall accrue at the same frequency that distributions are made to holders of any share of Common OP Units, and
(d) the Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend installment payable on the first Preferred Stock but occurs Dividend Accrual Date after issuance of a Preferred OP Unit shall be a prorated portion of the regular dividend based on or prior the number of days elapsed from the date of issuance to the next Annual Preferred Dividend Accrual Date. Each date upon which Preferred Dividends accrue is referred to as a “Preferred Dividend Accrual Date”. Each date upon which Preferred Dividends become payable is referred to as a “Preferred Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable”.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Sun Communities Inc), Limited Partnership Agreement (Sun Communities Inc)
Dividends. (a) SERIES A DIVIDENDS. For a period of three (3) years ------------------ following the date of issuance of the shares of Series A Preferred Stock, the Holders of outstanding shares of Series A Preferred Stock shall not be entitled to receive any dividends, and no dividends shall accrue with respect to shares of Series A Preferred Stock, during such period. Commencing on the first day of the fourth (4th) year following the date of issuance of the shares of Series A Preferred Stock, the Holders of the issued and outstanding shares of Series A Preferred Stock shall be entitled to receive, out receive dividends at the rate of eight percent (8.0%) per annum of the assets Face Value (as defined below). Such dividends shall be cumulative and shall accrue on a quarterly basis, whether or not declared, from and including the most recent date to which dividends have been paid, or if no dividends have been paid, from the date of original issue thereof. The right to dividends shall accrue regardless of whether there are profits, surplus or other funds legally available for payment of dividends. Whether the dividends on the Preferred Stock are to be paid in cash or in-kind shall be at the sole election of the Corporation legally available for at the payment end of dividendseach fiscal quarter of the Corporation, but such election shall be applicable to all Holders at the time of such election. If the Corporation elects to pay the dividends on in-kind by issuing additional shares of Preferred Stock, it shall so notify the terms described below:
Holders in writing, and such additional shares shall be issued or deemed issued only immediately prior to (i) Holders the occurrence of a Liquidation, (ii) the redemption of the Series A Preferred Stock, or (iii) the conversion of a Holder's shares of Series A Preferred Stock shall be entitled to participate equally and ratably with the holders of into shares of Common Stock in all dividends paid on of the shares of Common Stock Corporation, par value $.0001 per share (other than dividends paid in the form of "Common Stock, Convertible Securities or Options") as if immediately prior pursuant to each Common Stock Dividend Record Date, all shares Paragraph 5. Shares of Series A Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable accrued as dividends pursuant to this Section 4(a)(i) (the “Participating Dividends”Paragraph 4(a) shall not be payable on deemed outstanding for the same date that such dividends are payable to holders purposes of shares of Common Stockthis Paragraph 4 or Paragraph 6, and no dividends shall accrue with respect thereto, provided that such shares of Series A Preferred Stock accrued as dividends pursuant to this Paragraph 4(a) shall be deemed outstanding for the purposes of Paragraph 5. In the event that a dividend payment is made partly in cash and partly in-kind, each Holder will be entitled to receive the same relative proportions of cash and in-kind stock. Each dividend will be payable to holders Holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid record at the same time to close of business on the Holders date (a "Record Date") which is the last day of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds fiscal quarter of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) belowCorporation. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to To the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if that the Corporation elects to pay all or a dividend in cash, such cash payment will be made to the Holders no later than fifteen (15) days following the Record Date for such dividend. "Face Value" shall mean $4.50 per share of Series A Preferred Stock, subject to proportionate adjustment upon the occurrence of any part of the total amount of an Annual Dividend events specified in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (ASection 5(d)(iv) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing or (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAPthis Certificate.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 2 contracts
Samples: Series a Convertible Preferred Stock Purchase Agreement (Touchstone Applied Science Associates Inc /Ny/), Stock Purchase Agreement (Touchstone Applied Science Associates Inc /Ny/)
Dividends. (a) Holders of the issued and outstanding shares of Preferred Stock shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stockreceive, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), ifwhen, as and when if declared by the Board of Directors, out of funds of the Corporation legally available thereforfor payment, cumulative dividends at the Dividend Rate (“Dividends”). Dividends on each Annual the Preferred Stock shall be paid quarterly in arrears at the Dividend Payment Date for Rate in cash or, at the election of the Corporation, subject to receipt of any necessary Shareholder Approval (to the extent necessary), in Common Stock as provided pursuant to Section 4. For the avoidance of doubt, unless prohibited by applicable Payment Period or Payment Periods law, (i) the Board shall not fail to declare such Dividends on Preferred Stock and (ii) notwithstanding anything contained herein to the contrary, dividends on each outstanding share of the Preferred Stock (shall accrue for all fiscal periods during which the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”)is outstanding, payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date regardless of such share, whether or not declared and whether or not the Corporation has earnings in any such period, whether there are funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so whether or not such dividends are authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such shareor declared. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total arrears on each Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata Date to the Holders holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders record of Preferred Stock as they appear on the Register Corporation’s stock register at the Close close of Business business on the record date designated by relevant Dividend Record Date. Dividends payable for any period less than a full quarterly dividend period (based upon the Board number of Directors for days elapsed during such dividends, which (iperiod) with respect to Participating Dividends, shall be computed on the same basis of a 360-day as the record date year consisting of twelve 30-day months.
(b) No dividend shall be declared or paid upon, or any sum set apart for the payment of dividends to upon, any Outstanding share of the holders of shares of Common Preferred Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividendsany dividend period unless all dividends for all preceding dividend periods have been declared and paid, shall be not more than thirty (30) days nor less than ten (10) days preceding or declared and a sufficient sum has been set apart for the applicable Annual Dividend Payment Date (payment of such datedividend, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding upon all Outstanding shares of Preferred Stock, the Corporation shall not .
(ic) declare, pay or set aside for payment any No dividends or other distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions a dividend or acquisitions of distribution payable solely in shares of Parity Stock or Junior Securities with respect to equity awards Stock (including in connection with “cashless” the case of Parity Stock) or “net” exercises Junior Stock (in the case of OptionsJunior Stock) and cash in lieu of fractional shares) may be declared, payment of the exercise made or purchase price of Optionspaid, or to satisfy tax withholding obligations due as a result of the exercise of Options set apart for payment upon, any Parity Stock or delivery of equity awards) under Junior Stock, nor may any equity incentive plan Parity Stock or similar arrangements of the Corporation Junior Stock be redeemed, purchased or its Subsidiaries) otherwise acquired for any consideration (or pay any moneys money paid to or make made available for a sinking fund for the redemption of any Parity Stock or Junior Stock) by the Corporation or on behalf of the Corporation (except by (i) conversion into or exchange for shares of such Parity Stock or Junior SecuritiesStock (in the case of Parity Stock) or Junior Stock (in the case of Junior Stock) and cash solely in lieu of fractional shares of Parity Stock or Junior Stock (in the case of Parity Stock) or Junior Stock (in the case of Parity Stock) and (ii) payments in connection with the satisfaction of employees’ tax withholding obligations pursuant to employee benefit plans or outstanding awards (and payment of any corresponding requisite amounts to the appropriate governmental authority), unless, in each case, unless all Accumulated Dividends (A) immediately before and after as of the taking date of such actiondeclaration, payment, redemption, purchase or acquisition) shall have been or contemporaneously are declared and paid in cash. Further, no dividends or other distributions (other than a dividend or distribution payable solely in shares of Junior Stock and cash in lieu of fractional shares) may be declared, made or paid, or set apart for payment upon, any Junior Stock (except payments in connection with the fair value satisfaction of employees’ tax withholding obligations pursuant to employee benefit plans or outstanding awards (and payment of any corresponding requisite amounts to the appropriate governmental authority) unless the payment of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends dividend in respect of the Preferred Stock), (B) immediately after Stock for the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs most recent dividend period ending on or prior to the date of such declaration or payment has been declared and paid in cash or declared and a sum of cash sufficient for the payment thereof has been set aside for such payment. Notwithstanding the foregoing, if full dividends have not been paid on the Preferred Stock and any Parity Stock, dividends may be declared and paid on the Preferred Stock and such Parity Stock so long as the dividends are declared and paid pro rata so that the amounts of dividends declared per share on the Preferred Stock and such Parity Stock shall in all cases bear to each other the same ratio that accumulated and unpaid dividends per share on the shares of Preferred Stock and such Parity Stock bear to each other at the time of declaration.
(d) Holders of shares of Preferred Stock shall not be entitled to any dividend, whether payable in cash, property or stock, in excess of full cumulative dividends (it being understood that this Section 3(d) shall not limit the Corporation’s obligations pursuant to Section 3(a).
(e) If any Dividend Payment Date falls on a day that is not a Business Day, the required payment will be on the next Annual succeeding Business Day and no interest or dividends on such payment will accrue or accumulate as the case may be, in respect of the delay.
(f) The holders of shares of Preferred Stock at the close of business on a Dividend Record Date shall be entitled to receive the dividend payment on those shares on the corresponding Dividend Payment Date notwithstanding the conversion of such shares in accordance with Sections 8 or 9 following such Dividend Record Date or the Corporation’s default in payment of the dividend due on such Dividend Payment Date. In the case of conversion of shares of Preferred Stock pursuant to Section 5 following the close of business on a Dividend Record Date but prior to the corresponding Dividend Payment Date, the holders of such shares shall not be entitled to receive the corresponding dividend payment following conversion (it being understood that the value thereof is included in the conversion terms set forth in Section 5).
(g) Notwithstanding anything herein to the contrary, to the extent that any Holder’s right to participate in any Dividend would result in the Holder exceeding the Beneficial Ownership Limitation or the Permitted Percentage Limitation, then the rights appurtenant to such Dividend to which such Holder of such share at is entitled pursuant hereto shall be limited to the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. same extent provided in Section 11 hereof.
(h) Except as provided in this Section 4(c)8 the Corporation shall make no payment or allowance for unpaid dividends, Annual Dividends whether or not in arrears, on any share converted shares of Preferred Stock will cease to accumulate from and after or for dividends on the Fundamental Transaction Date or Conversion Date, as applicableshares of Common Stock issued upon conversion.
Appears in 2 contracts
Samples: Backstop and Subscription Agreement, Backstop and Subscription Agreement (Hennessy Capital Acquisition Corp. III)
Dividends. (a) Holders The holders of the issued and outstanding shares of Preferred Series B Stock shall be entitled to receivereceive dividends at the rate of $0.225 per share (as adjusted for any stock dividends, combinations or splits with respect to such shares) per annum, payable out of the assets of the Corporation funds legally available for the payment of dividends, therefor. Such dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally commence upon issuance and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), ifwhen, as and when if declared by the Board of Directors, in preference to any dividend to any other shares of Preferred Stock or Common Stock, and shall be cumulative. Dividends shall be paid quarterly on June 30, September 30, December 31 and March 31, commencing June 30, 1997, to holders of record as of the close of business five business days before the dividend payment date.
(b) No dividends (other than those payable solely in the Common Stock of the Corporation) shall be paid on any other shares of Preferred Stock or Common Stock of the Corporation during any fiscal year of the Corporation until dividends, combinations or splits with respect to such shares) on the Series B Stock shall have been paid or declared and set apart during that fiscal year and any prior year in which dividends accumulated but remain unpaid. Following any such payment or declaration, the holders of any other shares of Preferred Stock and Common Stock shall be entitled to receive dividends, payable out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, ifwhen, as and when so authorized and if declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iiic) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery No right shall accrue to holders of shares of Common StockSeries B Stock by reason of the fact that dividends on said shares are not declared in any prior year, nor shall any undeclared or unpaid dividend bear or accrue any interest. In the event the Corporation shall declare a distribution payable in securities of other persons, evidences of indebtedness issued by the Corporation or other persons, assets (Cexcluding cash dividends) by delivery or options or rights to purchase any such securities or evidences of indebtedness, then, in each such case the holders of the Series B Stock shall be entitled to a proportionate share of any combination of cash and shares of Common Stock; provided that, if such distribution as though the Corporation elects to pay all or any part holders of the total amount Series B Stock were the holders of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where of the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if into which their shares of Series B Stock are convertible as of the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than record date fixed for the Floor Price, (A) determination of the number of shares holders of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of entitled to receive such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable lawdistribution.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 2 contracts
Samples: Subscription and Purchase Agreement (Healthwatch Inc), Subscription and Purchase Agreement (Healthwatch Inc)
Dividends. (a) Holders 10.4.1 The Borrower shall not and shall procure that no other member of the issued and outstanding shares NCLC Group shall, pay any dividends or make any other distributions in respect of Preferred Stock shall be entitled its share capital to receiveany person, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
provided that (i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders subsidiaries of the Preferred Stock.
Borrower may pay dividends to another member of the NCLC Group; (ii) In addition the Borrower may pay dividends in respect of tax liability to each relevant jurisdiction in respect of tax returns for each relevant jurisdiction of the NCLC Group or holder of the Borrower’s capital stock with respect to income taxable as a result of any member of the NCLC Group being treated as a pass-through entity or attributable to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds member of the Corporation legally available thereforNCLC Group and (iii) after the later of (x) the listing of the ordinary capital stock of the Borrower or parent company of the Borrower on an Approved Stock Exchange and (y) an amount equal to the Total Delayed Principal Amount having been cancelled and/or prepaid and/or repaid, on each Annual Dividend Payment Date dividends may be paid in an amount not to exceed [*] of the Consolidated Net Income of the Borrower and its subsidiaries for the applicable Payment Period or Payment Periods dividends period commencing on each outstanding share of Preferred Stock 1 January 2010 and ending on the date prior to such payment for which accounts are available, so long as (the “Annual Dividends”I) at a rate per annum (calculated on the basis time of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends dividend, no Event of Default has occurred and shall be payable annually in arrears, if, as and when so authorized and declared by is continuing or would result from the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date payment of such share. Accrued Dividends, dividend and (II) after giving effect to such dividend the ratio of Total Net Funded Debt to Consolidated EBITDA for the four (4) consecutive financial quarters last ended for which accounts have been provided to the extent unpaid, shall in all cases be payable upon a Liquidation Agent pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date Clause 10.2 is less than [*]. The Agent shall use the Floor Price, (A) Application of Proceeds Formulation to determine whether an amount equal to the number of shares of Common Stock that are permitted to be delivered in partial payment relevant Maximum Amount of the Dividend PIK Delayed Principal Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAPhas been cancelled and/or prepaid and/or repaid.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment 10.4.2 The Borrower will procure that any dividends or other distributions upon any Junior Securities and interest paid or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including payable in connection with “cashless” or “net” exercises of Optionstherewith received by the Shareholder, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would NCL America Holdings and/or Arrasas will be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior paid to the next Annual Dividend Payment Date, then the Holder Borrower by way of such share at the Close of Business dividend promptly on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicablereceipt.
Appears in 2 contracts
Samples: Revolving Loan Facility Agreement (NCL CORP Ltd.), Revolving Loan Facility Agreement (NCL CORP Ltd.)
Dividends. (a) Holders Each of Raytheon and UTC shall coordinate with the other in respect of the issued designation of the record dates and outstanding payment dates for its quarterly cash dividends, so that holders of shares of Preferred Raytheon Common Stock shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, do not (a) receive dividends on both shares of Raytheon Common Stock and UTC Common Stock received in the terms described below:Merger in respect of any calendar quarter or (b) fail to receive a dividend on either shares of Raytheon Common Stock or UTC Common Stock received in the Merger in respect of any calendar quarter (in the case of this clause (b), unless UTC shall not pay a dividend on any shares of UTC Common Stock in respect of such quarter).
(i) Holders of shares of Preferred Stock shall be entitled On or prior to participate equally and ratably with the holders of shares of Common Stock date that is ten (10) business days prior to the anticipated Closing Date, UTC may, if it determines in all dividends paid on good faith that (A) the shares of Common Stock Applicable Indebtedness (other than dividends paid as defined in the form Separation Principles) is reasonably expected to exceed the Target Indebtedness (the amount of Common Stocksuch excess, Convertible Securities or Optionsthe “Overage Amount”) and (B) the aggregate outstanding principal amount of total indebtedness for borrowed money of Otis SpinCo, Carrier SpinCo and their respective subsidiaries as if of immediately prior to each Common Stock Dividend Record Datefollowing the consummation of the Otis Distribution (in the case of Xxxx SpinCo) and the Carrier Distribution (in the case of Carrier SpinCo) would exceed $18,250,000,000, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) deliver written notice (the “Participating DividendsOverage Notice”) of such determinations to Raytheon, which such notice shall be payable on also set forth the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred StockOverage Amount.
(ii) In addition to any dividends pursuant to Section 4(a)(i)the event that UTC delivers an Overage Notice, the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”A) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends Raytheon may, at the option of the Corporation in its sole discretion, be paid declare (Awith a record date prior to the Closing) and pay to its stockholders (whether before or after the Closing, while minimizing any delay in cash, the Closing to the extent reasonably practicable) a cash distribution in an aggregate amount equal to the product of (B1) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Datea fraction, the “Dividend PIK Amount”)numerator of which is 0.43 and the denominator of which is 0.57, and (2) the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Overage Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) subject to clause (II) below, whether or not Raytheon elects to pay such a cash distribution, Target Indebtedness shall be deemed for purposes of this Agreement (including the portion Separation Principles) to be increased by the Overage Amount; provided, that notwithstanding the foregoing, in the event the amount of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable cash distribution calculated in cash, which amount shall be calculated as accordance with this Section 6.13(b)(ii) would (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend be $250,000,000 or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividendsless, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the CorporationUTC may, in its good faith judgmentdiscretion, would withdraw the Overage Notice and no provision of this Section 6.13(b)(ii) shall be able given effect; provided, that if UTC does not withdraw the Overage Notice, then (I) Raytheon shall be permitted to pay all a cash distribution pursuant to this Section 6.13(b)(ii) in an aggregate amount of its debts $250,000,000 and (II) whether or not Raytheon elects to pay such a cash distribution, in lieu of the foregoing clause (B), the Target Indebtedness shall be deemed for purposes of this Agreement (including the aggregate Liquidation Preference and the aggregate Accrued Dividends Separation Principles) to be increased by $331,000,000, or (y) exceed $2,000,000,000, no provision of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable6.13(b)(ii) shall be given effect.
Appears in 2 contracts
Samples: Merger Agreement (Raytheon Co/), Merger Agreement (United Technologies Corp /De/)
Dividends. (a) Holders of In the issued and outstanding event that a distribution with respect to the shares of Preferred SST IV Common Stock permitted under the terms of this Agreement has a record date prior to the Merger Effective Time and has not been paid prior to the Closing Date, such distribution shall be paid to the holders of such shares of SST IV Common Stock on the Closing Date promptly after the Merger Effective Time. SST IV shall coordinate with SmartStop on the declaration, setting of record dates and payment dates of dividends on SST IV Common Stock so that holders of SST IV Common Stock (i) do not receive dividends on both SST IV Common Stock and SmartStop Class A Common Stock received in the Merger in respect of a single distribution period or fail to receive a dividend on either SST IV Common Stock or SmartStop Class A Common Stock received in the Merger in respect of a single distribution period or (ii) do not receive both a dividend permitted by the proviso to Section 6.2(b)(iii) on SmartStop Class A Common Stock received in the Merger and a dividend permitted by the proviso to Section 6.1(b)(iii) on SST IV Common Stock or fail to receive either a dividend permitted by the proviso to Section 6.2(b)(iii) on SmartStop Class A Common Stock received in the Merger or a dividend permitted by the proviso to Section 6.1(b)(iii) on SST IV Common Stock.
(b) In the event that either SST IV or SmartStop shall declare or pay any dividend or other distribution that is expressly permitted pursuant to the proviso at the end of Section 6.1(b)(iii) or Section 6.2(b)(iii), respectively, it shall notify the other Party at least twenty (20) days prior to the Closing Date, and such other Party shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
declare a dividend per share payable (i) Holders in the case of shares of Preferred Stock shall be entitled SST IV, to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of SST IV Common Stock, Convertible Securities or Optionsin an amount per share of SST IV Common Stock equal to the product obtained by multiplying (A) as if immediately prior the dividend declared by SmartStop with respect to each share of SmartStop Class A Common Stock Dividend Record Dateby (B) the Exchange Ratio, all shares and (ii) in the case of Preferred Stock then outstanding were converted into shares SmartStop, to holders of SmartStop Class A Common Stock, in an amount per share of SmartStop Class A Common Stock equal to the quotient obtained by dividing (A) the dividend declared by SST IV with respect to each share of SST IV Common Stock by (B) the Exchange Ratio. Dividends The record date and time and payment date and time for any dividend payable pursuant to this Section 4(a)(i) (the “Participating Dividends”7.8(b) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Closing Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 2 contracts
Samples: Merger Agreement (SmartStop Self Storage REIT, Inc.), Merger Agreement (Strategic Storage Trust IV, Inc.)
Dividends. (a) Holders The holders of the issued and outstanding shares of Series A Preferred Stock shall be entitled to receive, out receive preferential dividends at an annual rate equal to six percent (6%) per annum times the Original Issue Price (as defined below) for each share of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Series A Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that held by such dividends are payable to holders of shares of Common Stockholders, and no such dividends shall be payable in cash to the holders of record at the close of business on each March 15 and September 15 of each year. Dividends on shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Series A Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date date on which such shares are issued and, to the extent they are not paid in cash when due, shall compound on a semi-annual basis on each March 15 and September 15 of such shareeach year, whether or not declared and the Company has earnings or profits, whether or not the Corporation has there are funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a whether or not dividends are declared.
(b) Upon conversion of the any share of Series A Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred into Common Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments 4, the holder of such Series A Preferred Stock shall be aggregated per Holder entitled to receive payment of all accrued and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends mayunpaid dividends thereon, at the option of the Corporation in its sole discretionholder thereof, be paid (Ai) in cash, (B) by delivery of shares of Common Stock, cash or (Cii) by delivery in the form of any combination such number of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in additional shares of Common Stock (such amount with respect equal to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less amount of such accrued and unpaid dividends, divided by (y)(iy) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the then applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable lawSeries A Conversion Price.
(c) If In no event may any dividends be paid on the Fundamental Transaction Date or Conversion Date of any share of Series A Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on orunless, at the Corporation’s electiontime of such payment, before any and all dividends then accrued and payable on the shares of any Senior Stock shall have been paid in full. If dividends are paid on the shares of Series A Preferred Stock and shares of Parity Stock in an amount less than the total amount of such Annual Dividend Payment Datedividends at the time accrued and payable on all of such shares, such declared Annual Dividend dividends shall be allocated pro rata (in proportion to the respective amounts due with respect thereto) among all such shares of Series A Preferred Stock and shares of Parity Stock at the time outstanding based on the amount of dividends then due with respect to each such share. Except as provided in this Section 4(c), Annual Dividends In no event may any dividends be paid on any share Junior Stock unless, at the time of such payment, any and all dividends then accrued and payable on the shares of the Series A Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicablehave been paid in full.
Appears in 2 contracts
Samples: Merger Agreement (General Devices Inc), Securities Purchase Agreement (General Devices Inc)
Dividends. (a) Holders The holders of the issued and outstanding shares of Series B Preferred Stock shall be entitled to receive, out of the assets of the Corporation from funds legally available for the payment of dividendstherefor, dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid a noncumulative dividend at the same time to the Holders rate of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i)$.05 per share per annum, the Corporation shall pay, subject to Section 4(c), if, payable when and as and when declared by the Board of Directors, out . No dividends shall be declared or paid to the holders of funds Series A Preferred Stock or Common Stock unless the holders of Series B Preferred Stock have been paid in full all of the Corporation legally available therefordividends to which they are entitled, on each Annual Dividend Payment Date for nor shall any dividends be declared or paid to the applicable Payment Period or Payment Periods dividends on each outstanding share holders of Series A Preferred Stock (the “Annual Dividends”) or Common Stock at a rate per annum greater than the rate paid to the holders of Series B Preferred Stock.
(calculated b) Subject to Subsection 5(a), dividends may be declared and paid on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Series A Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally lawfully available for the payment of such dividends and shall be payable annually in arrears, if, therefor as and when so authorized and declared determined by the Board of DirectorsDirectors of the Corporation. If, when and as dividends are declared and paid on each Annual Dividend Payment Dateshares of Series A Preferred Stock, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued DividendsCorporation shall, after making payment in full to the extent unpaid, shall in all cases be payable upon a Liquidation holders of Series B Preferred Stock the amounts to which they are entitled pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(iSubsection 5(a), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder declare and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, pay at the option same time to each holder of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Series B Preferred Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided thata dividend at the same rate, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), based on the number of shares of Common Stock to be delivered shall be determined by dividing into which the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Series B Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to and the Holders of Series A Preferred Stock as they appear on the Register at the Close of Business are convertible on the record date designated for the determination of holders of Series A Preferred Stock entitled to receive such dividend.
(c) Subject to Subsection 5(a), dividends may be declared and paid an Common Stock from funds lawfully available therefor as and when determined by the Board of Directors for such dividendsof the Corporation. If, when and as dividends are declared and paid on shares of Common Stock, the Corporation shall, after making payment in full to the holders of Series B Preferred Stock the amounts to which (i) with respect they are entitled pursuant to Participating DividendsSubsection 5(a), shall be declare and pay at the same day as time to each holder of Preferred Stock, a dividend equal to the dividend which would have been payable to such holder if the shares of Preferred Stock held by such holder had been converted into Common Stock on the record date for the payment determination of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect entitled to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (receive such date, an “Annual Dividend Payment Record Date”)dividend.
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 2 contracts
Samples: Series C Convertible Preferred Stock Purchase Agreement (Sequenom Inc), Series C Convertible Preferred Stock Purchase Agreement (Sequenom Inc)
Dividends. (aA) Holders In each year the holders of the issued and outstanding shares of Class D Preferred Stock shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally when and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of DirectorsDirectors of the Corporation, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for that purpose, semi-annual dividends payable in cash on July 1 and January 1 in each year (each such date being referred to herein as "a Dividend Payment Date"), commencing January 1, 2006, in an amount equal to $.015 per share (that is, $.03 per share on an annual basis).
(B) In the payment case of such the original issuance of shares of Class D Preferred Stock, dividends shall begin to accrue and shall be payable annually in arrearscumulative from July 1, if2005. In the case of shares of Class D Preferred Stock issued after July 1, as and when so authorized and declared by the Board of Directors, on each Annual 2005 but prior to any Dividend Payment Date, commencing dividends shall begin to accrue and be cumulative from the date of issue to the next Dividend Payment Date; provided, however, that if dividends are not paid on any such Dividend Payment Date, then dividends shall accrue and be cumulative from the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion date such dividends have been paid. Dividends paid on shares of the Class D Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of an amount less than the total amount of an Annual Dividend in such dividends at the time accrued and payable on such shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10allocated pro-Day VWAP with respect to rata on a share-by-share basis among all such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of Class D Preferred shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the time outstanding. The Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the may fix a record date for the determination of holders of Class D Preferred Stock entitled to receive payment of dividends a dividend declared thereon, which record date shall be no more than sixty days prior to the holders of shares of Common Stock (date fixed for the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”)payment thereof.
(bC) Without Whenever dividends payable on the consent Class D Preferred Stock as provided in this Section 3 are in arrears, thereafter and until dividends, including all accrued dividends, on shares of the Holders representing at least a majority of the then-issued Class D Preferred Stock outstanding shall have been paid in full or declared and outstanding shares of Preferred Stockset apart for payment, the Corporation shall not (i) declare, pay or set aside for payment dividends on any dividends or distributions upon any Junior Securities common stock of the Corporation; or (ii) repurchase, redeem purchase or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of the Class D Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on Stock, unless required or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable4.
Appears in 2 contracts
Samples: Stock Exchange Agreement (Defense Technology Systems, Inc.), Stock Exchange Agreement (NewMarket Technology Inc)
Dividends. (a) Holders The holders of the issued and outstanding shares of Series B Preferred Stock shall be entitled to receive, out receive preferential dividends at an annual rate equal to six percent (6%) per annum times the Original Issue Price (as defined below) for each share of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Series B Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that held by such dividends are payable to holders of shares of Common Stockholders, and no such dividends shall be payable in cash to the holders of record at the close of business on each March 15 and September 15 of each year. Dividends on shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Series B Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date date on which such shares are issued and, to the extent they are not paid in cash when due, shall compound on a semi-annual basis on each March 15 and September 15 of such shareeach year, whether or not declared and the Company has earnings or profits, whether or not the Corporation has there are funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a whether or not dividends are declared.
(b) Upon conversion of the any share of Series B Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred into Common Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments 4, the holder of such Series B Preferred Stock shall be aggregated per Holder entitled to receive payment of all accrued and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends mayunpaid dividends thereon, at the option of the Corporation in its sole discretionholder thereof, be paid (Ai) in cash, (B) by delivery of shares of Common Stock, cash or (Cii) by delivery in the form of any combination such number of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in additional shares of Common Stock (such amount with respect equal to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less amount of such accrued and unpaid dividends, divided by (y)(iy) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the then applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable lawSeries B Conversion Price.
(c) If In no event may any dividends be paid on the Fundamental Transaction Date or Conversion Date of any share of Series B Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on orunless, at the Corporation’s electiontime of such payment, before any and all dividends then accrued and payable on the shares of any Senior Stock shall have been paid in full. If dividends are paid on the shares of Series B Preferred Stock and shares of Parity Stock in an amount less than the total amount of such Annual Dividend Payment Datedividends at the time accrued and payable on all of such shares, such declared Annual Dividend dividends shall be allocated pro rata (in proportion to the respective amounts due with respect thereto) among all such shares of Series B Preferred Stock and shares of Parity Stock at the time outstanding based on the amount of dividends then due with respect to each such share. Except as provided in this Section 4(c), Annual Dividends In no event may any dividends be paid on any share Junior Stock unless, at the time of such payment, any and all dividends then accrued and payable on the shares of the Series B Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicablehave been paid in full.
Appears in 2 contracts
Samples: Merger Agreement (General Devices Inc), Securities Purchase Agreement (General Devices Inc)
Dividends. (a) Holders No party shall, nor shall any party permit any of the issued and outstanding shares of Preferred Stock shall be entitled its subsidiaries to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders declare or pay any dividends on or make other distributions in respect of shares any of Preferred Stock shall be entitled their capital stock other than to participate equally such party or its wholly-owned subsidiaries and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends required to be paid in the form on any series of Common Pacific Preferred Stock, Convertible Securities Pacific Sub Preferred Stock, Enova Sub Preferred Stock or Options) as if immediately prior to each Califia Company preferred stock in accordance with the respective terms thereof, regular quarterly dividends on Pacific Common Stock Dividend Record Date, all shares with usual record and payment dates not during any fiscal year in excess of Preferred Stock then outstanding were converted into shares 110% of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable dividends for the prior fiscal year and regular quarterly dividends on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Enova Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders with usual record and payment dates not during any fiscal year in excess of 110% of the Preferred Stock.
dividends for the prior fiscal year; (ii) In addition to split, combine or reclassify any dividends pursuant to Section 4(a)(i)of their capital stock or issue or authorize or propose the issuance of any other securities in respect of, the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i)lieu of, or upon any conversion in substitution for, shares of the Preferred Stock pursuant to its capital stock, except as otherwise provided in this Section 6(a)(i) 5.01; or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends mayredeem, at the option repurchase or otherwise acquire any shares of the Corporation in its sole discretiontheir capital stock, be paid other than (A) in cashredemptions, purchases or acquisitions required by the respective terms of any series of Pacific Preferred Stock, Pacific Sub Preferred Stock or Enova Sub Preferred Stock, (B) in connection with refunding of Pacific Preferred Stock, Pacific Sub Preferred Stock or Enova Sub Preferred Stock with preferred stock or debt at a lower cost of funds or in connection with intercompany purchases of capital stock, (C) in connection with employee benefit plans, (D) by delivery Pacific, subject to paragraph (l) below, the repurchase of up to 4,250,000 shares of Pacific Common Stock and the expenditure of up to $50,000,000 for the redemption, repurchase or other acquisition of shares of Pacific Preferred Stock and Pacific Sub Preferred Stock and (E) by Enova, subject to paragraph (1) below, the repurchase of up to 4,250,000 shares of Enova Common Stock and the expenditure of up to $50,000,000 for the redemption, repurchase or other acquisition of shares of Enova Sub Preferred Stock or Califia preferred stock. The last record date of each of Pacific and Enova on or prior to the Effective Time which relates to a regular quarterly dividend on Pacific Common Stock or Enova Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if as the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividendscase may be, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable lawEffective Time.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 2 contracts
Samples: Merger Agreement (Enova Corp), Merger Agreement (Pacific Enterprises Inc)
Dividends. (a) The Holders of the issued and outstanding shares of Preferred Stock shall be entitled to receive, out receive with respect to each share of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described belowSeries A Preferred Stock:
(i) Holders from and after the Issue Date until the first Dividend Payment Date (as defined below) following the second anniversary of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) Issue Date (the “Participating DividendsOption Dividend Termination Date”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), ifwhen, as and when if declared by the Board of Directors, but only out of funds of the Corporation legally available therefor, dividends (subject to Section 4(b) below) on each Annual February 15, May 15, August 15 and November 15, beginning on the first such date following the Issue Date (each, a “Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual DividendsDate”) ), at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.009.0% of the Liquidation Preference per share of each such share, payable at the Company’s option with respect to each Dividend Period either in (A) cash or (B) additional shares of Series A Preferred Stock (“PIK Dividends”) (provided that, to the “Dividend Rate”)extent payment of PIK Dividends on any Holder’s shares of Series A Preferred Stock, payable taken as a whole, would result in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of a fractional share of Series A Preferred Stock to such dividends Holder, to save the Company the trouble, expense and inconvenience of issuing fractional shares, such fractional share shall instead be payable annually paid in arrearscash); and
(ii) from and after the Option Dividend Termination Date, ifwhen, as and when so authorized and if declared by the Board of Directors, but only out of funds legally available therefor, cash dividends (subject to Section 4(b) below) at a rate per annum equal to 9.0% of the Liquidation Preference of each such share, payable in arrears on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon If any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Pricenot a Business Day, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall then dividends will be payable in cash, which amount on the first Business Day following such date and dividends shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata accrue to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the actual payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 2 contracts
Samples: Series a Convertible Preferred Stock Transaction Agreement (Guaranty Bancorp), Transaction Agreement (Guaranty Bancorp)
Dividends. (a) Holders The holders of the issued Series B Preferred Stock, in preference to the holders of Common Stock and outstanding shares any subsequently designated series of Preferred Stock which is junior in right of payment to the Series B Preferred Stock, shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, Directors and out of funds assets which by law are available for payment of dividends, and subject to the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share dividend rights of any subsequently designated series of Preferred Stock (which is senior to or on a parity with the “Annual Dividends”) Series B Preferred Stock in payment preference, cumulative dividends at a the rate of 10% per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per original issuance price of each share of (or a pro rata portion thereof if the Series B Preferred Stock (is outstanding for only a portion of the “Dividend Rate”year), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of at such share, whether time or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall times as may be payable annually in arrears, if, as and when so authorized and declared determined by the Board of Directors, and accruing from the date on each Annual Dividend Payment Date, commencing on which the first Annual Dividend Payment Date following the Issuance Date respective shares of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Series B Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall issued. Such dividends will be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, cumulative so that if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount dividends with respect to any Annual Dividend Payment Dateperiod at the aforesaid rate shall not have been paid upon or declared and set apart for the Series B Preferred Stock, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered deficiency shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price fully paid and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend set apart before any dividends shall be paid pro rata upon or declared or set apart for the Common Stock or any such junior series of Preferred Stock. Accumulation of dividends shall not bear interest. The holders of Series B Preferred Stock shall be entitled to participate in such dividends ratably on the basis of the amount of all accrued but unpaid dividends on each outstanding share. All references herein to the Holders issuance price of shares a share of Series B Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable refers to the Holders of Preferred Stock price at which such share was issued by the Corporation, as they appear on the Register at the Close of Business on the record date designated reasonably determined by the Board of Directors for such dividendsDirectors, which (i) with respect adjusted to Participating Dividendsequitably reflect any subsequent stock split, shall be stock dividend, combination, reorganization, recapitalization, reclassification or other similar event involving a change in the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Series B Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 2 contracts
Samples: Debt Conversion and Reimbursement Agreement (Um Holdings LTD), Debt Conversion and Reimbursement Agreement (Cybex International Inc)
Dividends. (a) Holders From and after the date of the issued and outstanding issuance of any shares of Series C Preferred Stock, dividends at the rate per annum of 8% of the Series C Original Issue Price shall accrue on such shares of Series C Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series C Preferred Stock) (the “Series C Preferred Dividend”). Series C Preferred Dividends shall accrue quarterly, whether or not declared but shall be entitled noncumulative and non-compounding; provided however, that except as set forth in the following sentence of this Section 5(a) or in Section 1(a) or Section 6(a) of this Article FOURTH, such Series C Preferred Dividends shall be payable only when, as, and if declared by the Board of Directors and the Corporation shall be under no obligation to receivepay such Series C Preferred Dividends. The Corporation shall not declare, out pay or set aside any dividends on shares of the assets Series B Preferred Stock, Series A Preferred Stock, Seed Preferred Stock or Common Stock of the Corporation legally available for the payment of dividends, (other than dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock payable in all dividends paid on the shares of Common Stock Stock) unless (other than dividends paid in addition to the obtaining of any consents required elsewhere in the form Certificate of Common Stock, Convertible Securities or OptionsIncorporation) as if immediately prior to each Common Stock Dividend Record Date, all shares the holders of the Series C Preferred Stock then outstanding were converted into shares shall first receive, or simultaneously receive, a dividend on each outstanding share of Common Stock. Series C Preferred Stock in an amount at least equal to the amount of the aggregate Series C Preferred Dividends payable pursuant to this Section 4(a)(i) (then accrued on such share of Series C Preferred Stock and not previously paid and, in the “Participating Dividends”) shall be case of a dividend payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be the dividend which would have been payable to such holder if the shares of Series C Preferred Stock held by such holder had been converted into Common Stock on the record date for the determination of holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time entitled to the Holders of the Preferred Stockreceive such dividend.
(iib) In addition to any dividends pursuant to Section 4(a)(i), From and after the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds date of the Corporation legally available thereforissuance of any shares of Series B Preferred Stock, dividends at the rate per annum of eight percent (8%) of the Series B Original Issue Price shall accrue on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share such shares of Series B Preferred Stock (subject to appropriate adjustment in the “Annual Dividends”event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series B Preferred Stock) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend RateSeries B Preferred Dividend”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Series B Preferred Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such sharedaily, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as cumulative and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stocknon-compounding; provided thathowever, if that except as set forth in the Corporation elects to pay all or any part following sentence of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.this
Appears in 2 contracts
Samples: Preferred Stock Purchase Warrant (Genocea Biosciences, Inc.), Preferred Stock Purchase Warrant (Genocea Biosciences, Inc.)
Dividends. (a) Holders From and after the date of this Agreement until the earlier of the issued Effective Time and outstanding termination of this Agreement, neither VEREIT, VEREIT OP nor Realty Income shall make, declare or set aside any dividend or other distribution to its respective stockholders or unitholders without the prior written consent of VEREIT (in the case of Realty Income) or Realty Income (in the case of VEREIT or VEREIT OP); provided, however, that the written consent of the other party shall not be required for the declaration and payment of regular quarterly cash dividends by VEREIT and the declaration and payment of regular quarterly cash distributions by VEREIT OP or monthly (in the case of Realty Income) cash dividends in accordance with past practice at a rate not in excess of the regular cash dividend most recently declared prior to the date of this Agreement with respect to each of the shares of Preferred Stock shall be entitled to receiveVEREIT Common Stock, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of VEREIT Series F Preferred Stock, VEREIT Partnership Series F Preferred Units, VEREIT Partnership Common Units and shares of Realty Income Common Stock, respectively, subject to customary increases in accordance with past practices (it being agreed that the timing of any such distributions will be coordinated so that, if either the holders of VEREIT Common Stock shall be entitled to participate equally and ratably with or the holders of shares of Realty Income Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately receive a distribution for a particular period prior to each Common Stock Dividend Record the Closing Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Realty Income Common Stock (and the “holders of VEREIT Common Stock Dividend Record Date”)Stock, and (ii) with respect to Annual Dividendsrespectively, shall be not more than thirty (30) days nor less than ten (10) days preceding receive a distribution for a comparable period prior to the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Closing Date”).
(b) Without Notwithstanding the consent foregoing or anything else to the contrary in this Agreement, each of the Holders representing at least VEREIT and Realty Income, as applicable, shall be permitted to declare and pay a majority of the then-issued and outstanding shares of Preferred Stockdividend to its stockholders, the Corporation record date and payment date for which shall not be the close of business on the last Business Day prior to the Closing Date, distributing any amounts determined by such party (iin each case in consultation with the other party) declare, pay or set aside to be the minimum dividend required to be distributed in order for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect such party to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due qualify as a result REIT and to avoid to the extent reasonably possible the incurrence of the exercise of Options income or delivery of equity awards) under excise Tax (any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for dividend paid pursuant to this paragraph, a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock“REIT Dividend”), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If either party determines that it is necessary to declare a REIT Dividend, it shall notify the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or other party at least twenty (20) days prior to the next Annual Dividend Payment DatePartnership Merger Effective Time, then and such other party shall be entitled to declare a dividend per share payable (i) in the Holder case of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicableVEREIT, to receiveholders of VEREIT Common Stock, on orin an amount per share of VEREIT Common Stock equal to the product of (A) the REIT Dividend declared by Realty Income with respect to each share of Realty Income Common Stock and (B) the Exchange Ratio and (ii) in the case of Realty Income, at to holders of shares of Realty Income Common Stock, in an amount per share of Realty Income Common Stock equal to the Corporation’s election, before such Annual quotient obtained by dividing (x) the REIT Dividend Payment Date, such declared Annual Dividend on such shareby VEREIT with respect to each share of VEREIT Common Stock by (y) the Exchange Ratio. Except as provided in The record date and payment date for any dividend payable pursuant to this Section 4(c), Annual Dividends 5.10(c) shall be the close of business on any share of Preferred Stock will cease the last Business Day prior to accumulate from and after the Fundamental Transaction Date or Conversion Closing Date, as applicable.
Appears in 2 contracts
Samples: Merger Agreement (VEREIT Operating Partnership, L.P.), Merger Agreement (Realty Income Corp)
Dividends. (a) Holders of the issued and outstanding shares of The Series A Preferred Stock shall not be entitled to receive, receive dividends unless and until the Board of Directors declares a dividend in respect of the Common Stock out of the assets of the Corporation legally available for the payment of dividendsfunds therefor; provided, however, -------- ------- that no dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with declared or paid upon the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in payable upon the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of solely in additional shares of Common Stock, provided that an appropriate adjustment in the Conversion Price is made under Section 6(a) hereof) or any other stock ranking on liquidation junior to the Series A Preferred Stock (such stock being referred to hereinafter collectively as "Junior Stock") unless (i) after the payment of the dividend on the Common Stock and no dividends Junior Stock (and the simultaneous dividend on the Series A Preferred Stock) the Corporation's net worth exceeds the aggregate liquidation preference of the Series A Preferred Stock (provided that this clause (i) shall not apply if the dividend is approved by the holders of a majority of the outstanding shares of Series A Preferred Stock) and (ii) there shall be simultaneous declaration or payment, as applicable, of a dividend upon the Series A Preferred Stock.
(b) In the case of any dividend being declared upon the Common Stock, the dividend which shall be declared upon each share of Series A Preferred Stock as a condition to such dividend upon the Common Stock shall be equal in amount to the dividend payable to holders upon that number of shares of Common Stock unless acquirable upon conversion of a share of Series A Preferred Stock immediately before the full dividends contemplated by this declaration of such dividend, with such conversion being based on the then applicable Conversion Price determined in accordance with Section 4(a)(i) are paid at the same time to the Holders 6 as of the Preferred record date for the declaration of such dividend on the Common Stock.
(iic) In addition to the case of any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when dividend being declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion class of the Preferred Junior Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of that is convertible into Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part amount of the total amount dividend which shall be declared upon each share of an Annual Dividend in shares of Common Series A Preferred Stock (as a condition to such amount with respect to any Annual Dividend Payment Datedividend on Junior Stock, the “Dividend PIK Amount”), divided by the number of shares of Common Stock to be delivered acquirable upon conversion of a share of Series A Preferred Stock, shall be determined equal the amount of the dividend declared upon each share of such class of Junior Stock, divided by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered acquirable upon conversion of a share of such class of Junior Stock, in partial payment each case assuming such conversion occurred immediately before the declaration of the Dividend PIK Amount such dividend.
(the “Actual Dividend PIK Payment Shares”d) No dividend shall be calculated by dividing declared or paid upon any class of Junior Stock (vother than Common Stock) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of convertible into Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without without the consent of the Holders representing holders of at least a majority of the then-issued and outstanding shares of Series A Preferred Stock, the Corporation shall not .
(ie) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions Holders of shares of Junior Securities with respect Series A Preferred Stock shall be entitled to equity awards (including in connection with “cashless” or “net” exercises of Optionsshare equally, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) share for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unlessshare, in each case, (A) immediately before and after all such dividends declared upon the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Series A Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Go2net Inc), Stock Purchase Agreement (Vulcan Ventures Inc)
Dividends. (a) Holders From and after the Closing Date, each Holder, in preference and priority to the holders of all other classes or series of stock of the issued and outstanding shares of Preferred Stock Corporation, shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior respect to each Common Stock Dividend Record Dateshare, all shares or fraction of a share, of Preferred Stock then outstanding were and held by such Holder, dividends accruing on a daily basis, commencing from the date of issuance of such share of Preferred Stock, at the rate of three percent (3%) per annum of the Stated Value per whole share (or proportion thereof with respect to fractional shares) of such series of Preferred Stock (the “Preferred Dividends”). The Preferred Dividends shall be cumulative, whether or not earned or declared, shall compound quarterly and shall be paid quarterly in arrears on the last day of March, June, September and December in each year, commencing [●], 2019. For the avoidance of doubt, dividends shall accrue daily on the Stated Value of each share of Preferred Stock as such Stated Value is increased by any payment of Preferred Dividends pursuant to the immediately succeeding sentence and such dividends shall be considered accumulated upon the date scheduled for payment of such dividends. The Preferred Dividends shall be paid, at the option of the Corporation, in the form of cash or paid in kind by an increase in the Stated Value of the Preferred Stock, or any combination thereof.
(b) In the event that the Corporation shall at any time pay a dividend on or make a distribution in respect of the Common Stock in cash or any other class or series of capital stock of the Corporation, the Corporation shall, at the same time and on the same terms, pay or distribute to each Holder a dividend (or distribution) equal to the dividend (or distribution) that would have been payable or made to such Holder if the shares, or fraction of a share, of Preferred Stock held by such Holder had been converted into shares Common Stock on the date of determination of holders of Common Stock. Dividends payable pursuant Stock entitled to this Section 4(a)(i) receive such dividend or distribution (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If Except as otherwise provided herein, if at any time the Fundamental Transaction Date or Conversion Date Corporation pays less than the total amount of any share dividends then accumulated with respect to the Preferred Stock, such payment shall be distributed pro rata among the Holders entitled thereto based upon the Stated Value on all shares of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of held by each such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicableHolder.
Appears in 2 contracts
Samples: Investment Agreement (RingCentral, Inc.), Investment Agreement (Avaya Holdings Corp.)
Dividends. (aA) Holders In each year the holders of the issued and outstanding shares of Class C Preferred Stock shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally when and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of DirectorsDirectors of the Corporation, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for that purpose, semi-annual dividends payable in cash on July 1 and January 1 in each year (each such date being referred to herein as "a Dividend Payment Date"), commencing January 1, 2006, in an amount equal to $.015 per share (that is, $.03 per share on an annual basis).
(B) In the payment case of such the original issuance of shares of Class C Preferred Stock, dividends shall begin to accrue and shall be payable annually in arrearscumulative from July 1, if2005. In the case of shares of Class C Preferred Stock issued after July 1, as and when so authorized and declared by the Board of Directors, on each Annual 2005 but prior to any Dividend Payment Date, commencing dividends shall begin to accrue and be cumulative from the date of issue to the next Dividend Payment Date; provided, however, that if dividends are not paid on any such Dividend Payment Date, then dividends shall accrue and be cumulative from the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion date such dividends have been paid. Dividends paid on shares of the Class C Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of an amount less than the total amount of an Annual Dividend in such dividends at the time accrued and payable on such shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10allocated pro-Day VWAP with respect to rata on a share-by-share basis among all such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of Class C Preferred shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the time outstanding. The Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the may fix a record date for the determination of holders of Class C Preferred Stock entitled to receive payment of dividends a dividend declared thereon, which record date shall be no more than sixty days prior to the holders of shares of Common Stock (date fixed for the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”)payment thereof.
(bC) Without Whenever dividends payable on the consent Class C Preferred Stock as provided in this Section 3 are in arrears, thereafter and until dividends, including all accrued dividends, on shares of the Holders representing at least a majority of the then-issued Class C Preferred Stock outstanding shall have been paid in full or declared and outstanding shares of Preferred Stockset apart for payment, the Corporation shall not (i) declare, pay or set aside for payment dividends on any dividends or distributions upon any Junior Securities common stock of the Corporation; or (ii) repurchase, redeem purchase or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of the Class C Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on Stock, unless required or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable4.
Appears in 2 contracts
Samples: Stock Exchange Agreement (Defense Technology Systems, Inc.), Stock Exchange Agreement (NewMarket Technology Inc)
Dividends. (ai) Holders Subject to the rights of the issued holders of any other series of Preferred Stock ranking senior to or on a parity with the Series A Preferred Stock with respect to dividends and outstanding shares any other class or series of capital stock of the Corporation ranking senior to or on a parity with the Series A Preferred Stock with respect to dividends, other than the Common Stock, the holders of the Series A Preferred Stock shall be entitled to receive, out when and as declared by the Board of Directors, cumulative dividends per share of Series A Preferred Stock at a rate per annum as determined by the assets Board of Directors during the Corporation legally available for period commencing after the payment date of dividends, dividends on the terms described below:
(i) Holders original issuance of any shares of Series A Preferred Stock shall be entitled until converted pursuant to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid Section 5 above; provided, however, in the form event of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Datean Optional Conversion, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall accumulated dividends will automatically be payable on the same date that eliminated and no such dividends are will be due or payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Series A Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i)Dividends on the Series A Preferred Stock will accrue on each December 15, March 15, June 15, and September 15, occurring after the date of original issuance, provided that the Corporation shall pay, subject have the option to Section 4(c), if, pay dividends when and as and when declared by the Board of Directors, out of funds Directors of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) belowCorporation. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of The party that holds the Preferred Stock following a Fundamental Transaction pursuant on an applicable record date for any dividend payment will be entitled to Section 7(g)(i)receive such dividend payment and any other accrued and unpaid dividends which accrued prior to such dividend payment date, without regard to any sale or upon any conversion disposition of the such shares of Series A Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made subsequent to the nearest cent (with $0.005 being rounded upward)applicable record date but prior to the applicable dividend payment date.
(iii) The Annual Dividends mayCorporation shall pay the dividends on the Series A Preferred Stock described in Section 6(a)(i), at the Corporation's option of the Corporation and in its sole discretion, be paid out of funds legally available therefor (A) in cash, (B) by delivery of in shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), that the number of shares of Common Stock to be delivered distributed as a dividend to each holder of Series A Preferred Stock shall be equal to the cash amount of such dividend payable to such holder on such dividend payment date divided by the average quote per share of Common Stock reported by OTC Bulletin Board or any other stock exchange on which the Common Stock is traded, as determined by dividing the Dividend PIK Amount by Company (the 10-Day VWAP with respect to "Per Share Market Value") for the fifteen (15) trading days immediately preceding such Annual Dividend Payment Date; provided thatdividend payment date, where or (C) in any combination of cash and shares of Common Stock that the Corporation has determined may determine in its sole discretion to pay a Dividend PIK Amountdiscretion, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered distributed in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall connection therewith to be calculated by dividing (v) on the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable basis set forth in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAPSection 6(a)(iii)(B).
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of No fractional shares of Common Stock (or scrip shall be issued upon payment of any dividends in shares of Common Stock. If more than one share of Series A Preferred Stock shall be held by the “same holder at the time of any dividend payment date, the number of full shares of Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, issuable upon payment of such dividends shall be not more than thirty (30) days nor less than ten (10) days preceding computed on the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent basis of the Holders representing at least a majority aggregate dividend amount that the Corporation has determined to pay in Common Stock shares. Instead of the then-issued and outstanding any fractional shares of Preferred StockCommon Stock which would otherwise be issuable upon payment of such dividends, the Corporation shall not pay out of funds legally available therefor a cash adjustment in respect of such fractional interest, rounded to the nearest one hundredth (i1/100th) declareof a share, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect in an amount equal to equity awards (including in connection with “cashless” or “net” exercises of Options, payment that fractional interest of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund average Per Share Market Value for the redemption of any shares of fifteen (15) trading days immediately preceding such Junior Securitiesdividend payment date, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior rounded to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(cnearest cent ($.01), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 2 contracts
Samples: Convertible Promissory Note (Hq Sustainable Maritime Industries, Inc.), Purchase Agreement (Hq Sustainable Maritime Industries, Inc.)
Dividends. (a) Holders To the extent necessary to satisfy the requirements of Section 857(a)(1) of the issued and outstanding shares of Preferred Stock shall be entitled to receive, out of the assets of the Corporation legally available Code for the payment taxable year of dividendsICH ending at the Effective Time, dividends on the terms described below:
(i) Holders of shares of Preferred Stock ICH shall be entitled to participate equally declare and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) pay a dividend (the “Participating Dividends”"Final ICH Dividend") shall be payable on the same date that such dividends are payable to holders of shares of Common ICH Stock, the record and no dividends payment dates for which shall be payable to holders on or before the close of shares of Common Stock unless business on the full dividends contemplated by this Section 4(a)(i) are paid at the same time last business day prior to the Holders of Effective Time, in an amount sufficient to permit ICH to satisfy such requirements. If ICH determines it necessary to declare the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i)Final ICH Dividend, the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual such Final ICH Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery in the ordinary course of business, consistent with past practice, as provided in Section 5.2(a)(i) hereof, it shall notify ACT at least ten days prior to the Actual Dividend PIK Payment Shares date for the ICH Stockholder Meeting (as defined below), and ACT shall declare a dividend per ACT Common Share, the record date for which shall be payable the close of business on the last business day prior to the Effective Time, in cash, which an amount shall be calculated as per share equal to the quotient obtained by dividing (x) the total Final ICH Dividend PIK Amount less per share of ICH Stock paid by ICH by (y)(iy) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”)Exchange Ratio.
(b) Without No dividends or other distributions with respect to ACT Common Shares with a record date after the consent Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the Holders representing at least a majority ACT Common Shares represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 2.5, in each case until the then-issued and outstanding shares surrender of Preferred Stocksuch Certificate in accordance with this Article II. Subject to the effect of applicable escheat laws, as soon as reasonably practicable following surrender of any such Certificate there shall be paid to the Corporation shall not holder of such Certificate, without interest, (i) declareat the time of such surrender, pay or set aside for payment the amount of any dividends or distributions upon cash payable in lieu of any Junior Securities or fractional ACT Common Share to which such holder is entitled pursuant to Section 2.5 and (ii) repurchaseif such Certificate is exchangeable for one or more whole ACT Common Shares, redeem (x) at the time of such surrender the amount of dividends or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities distributions with a record date after the Effective Time theretofore paid with respect to equity awards such whole ACT Common Shares and (including in connection y) at the appropriate payment date, the amount of dividends or other distributions with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and record date after the taking of Effective Time but prior to such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference surrender and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of with a payment date subsequent to such action, the Corporation, in its good faith judgment, would be able surrender payable with respect to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable lawwhole ACT Common Shares.
(c) If Notwithstanding any provision of this Article II to the Fundamental Transaction Date contrary, dividends shall be paid by ICH pro rata with respect to each outstanding share of beneficial interest within a particular class of ICH Stock and dividends shall be paid by ACT pro rata with respect to each outstanding share of beneficial interest of ACT within a particular class in accordance with the requirements of Section 562(c) of the Code (including, as necessary, by transferring cash to an appropriate paying agent), and no dividend payments shall accrue to the benefit of ACT or Conversion Date ICH for failure of a former holder of ICH Stock to surrender any certificate representing any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicableICH Stock.
Appears in 2 contracts
Samples: Merger Agreement (Impac Commercial Holdings Inc), Merger Agreement (Amresco Capital Trust)
Dividends. (a) Holders of In the issued and outstanding event that a distribution with respect to the shares of Preferred CCIT III Common Stock permitted under the terms of this Agreement has a record date prior to the Merger Effective Time and has not been paid prior to the Closing Date, such distribution shall be paid to the holders of such shares of CCIT III Common Stock on the Closing Date immediately prior to the Merger Effective Time. In the event that a distribution with respect to the shares of CMFT Common Stock permitted under the terms of this Agreement has a record date prior to the Merger Effective Time and has not been paid prior to the Closing Date, such distribution shall be paid to the holders of such shares of CMFT Common Stock on the Closing Date immediately prior to the Merger Effective Time. CCIT III shall coordinate with CMFT on the declaration, setting of record dates and payment dates of dividends on CCIT III Common Stock so that holders of CCIT III Common Stock (i) do not receive dividends on both CCIT III Common Stock and CMFT Common Stock received in the Merger in respect of a single distribution period or fail to receive a dividend on either CCIT III Common Stock or CMFT Common Stock received in the Merger in respect of a single distribution period or (ii) do not receive both a dividend permitted by the proviso to Section 6.2(b)(iii) on CMFT Common Stock and a dividend permitted by the proviso to Section 6.1(b)(iii) on CCIT III Common Stock received in the Merger or fail to receive either a dividend permitted by the proviso to Section 6.2(b)(iii) on CMFT Common Stock or a dividend permitted by the proviso to Section 6.1(b)(iii) on CCIT III Common Stock received in the Merger.
(b) In the event that either CCIT III or CMFT shall declare or pay any dividend or other distribution that is expressly permitted pursuant to the proviso at the end of Section 6.1(b)(iii) or Section 6.2(b)(iii), respectively, it shall notify the other Party at least twenty (20) days prior to the Closing Date, and such other Party shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
declare a dividend per share payable (i) Holders in the case of shares of Preferred Stock shall be entitled CCIT III, to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of CCIT III Common Stock, Convertible Securities or Optionsin an amount per share of CCIT III Common Stock equal to the product of (A) as if immediately prior the dividend declared by CMFT with respect to each share of CMFT Common Stock Dividend Record Dateby (B) the Exchange Ratio, all shares and (ii) in the case of Preferred Stock then outstanding were converted into shares CMFT, to holders of CMFT Common Stock, in an amount per share of CMFT Common Stock equal to the quotient obtained by dividing (A) the dividend declared by CCIT III with respect to each share of CCIT III Common Stock by (B) the Exchange Ratio. Dividends The record date and time and payment date and time for any dividend payable pursuant to this Section 4(a)(i) (the “Participating Dividends”7.8(b) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Closing Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 2 contracts
Samples: Merger Agreement (Cole Office & Industrial REIT (CCIT III), Inc.), Merger Agreement (Cim Real Estate Finance Trust, Inc.)
Dividends. 2.1 From and after July 1, 2016 (a) Holders and, for the avoidance of doubt, including July 1, 2016), the holders of the issued and outstanding shares of Series J Preferred Stock shall be entitled to receive, prior in preference to the holders of any Junior Stock, out of the assets of the Corporation funds legally available for the payment of dividendstherefor, dividends on each share of Series J Preferred Stock at a rate equal to fifteen percent (15%) of the terms described below:
Series J Original Issue Price thereof per annum plus all accumulated and unpaid dividends thereon payable when, as and if declared by the Corporation’s Board of Directors or upon a Liquidation Event, redemption, repurchase or conversion of the Series J Preferred Stock (i) Holders of shares of “Dividend Payment Event”). Such dividends shall be cumulative. All dividends accruing on the Series J Preferred Stock shall be entitled to participate equally and ratably with paid by the holders issuance of additional shares of Common Series J Preferred Stock (including fractional shares) in all an amount equal in number to the aggregate amount of the dividend to be paid divided by the Series J Original Issue Price (“Accruing Dividend Shares”). When Accruing Dividend Shares are issued pursuant to this Section 2.1, such shares shall be deemed to be validly issued and outstanding and fully paid and non-assessable. The amount of dividends paid payable per share of Series J Preferred Stock for any period shorter than a full year shall be computed ratably on the shares basis of Common Stock twelve (other than dividends paid 12) thirty (30) day months and a three-hundred sixty (360) day year. Notwithstanding the foregoing, if any of the representations, warranties or agreements set forth in that certain Comfort Letter, effective March 31, 2016, from the Corporation to DMRJ Group LLC and Montsant Partners LLC is or becomes breached or is or becomes false or misleading in any respect, then the dividend rate otherwise applicable hereunder, as set forth in the form of Common Stockpreceding paragraph, Convertible Securities or Optionsshall be increased by an additional fourteen percent (14%) as per annum (prorated for partial years), not to exceed the maximum amount (if immediately prior any) permitted by law.
2.2 Subject to each Common Stock Dividend Record Date, all shares the preferences that may be applicable to any other Series of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (outstanding, the “Participating Dividends”) Corporation shall be payable not declare, pay or set aside any dividends on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of any shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders holders of the Series J Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation Stock then outstanding shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends simultaneously receive a dividend on each outstanding share of Series J Preferred Stock (the “Annual Dividends”) in an amount at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) least equal to 8.00% of the Liquidation Preference that dividend per share of Series J Preferred Stock as would equal the product of (i) the “Dividend Rate”), dividend payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares share of Common Stock and (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (Aii) the number of shares of Common Stock that are permitted to be delivered issuable upon conversion of a share of Series J Preferred Stock, in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be each case calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by for determination of holders entitled to receive such dividend.”
3. The first sentence of Section 3.1 is hereby deleted in its entirety and replaced with the Board following sentence: “Subject to the preferences that may be applicable to any other Series of Directors for such dividendsPreferred Stock then outstanding, which in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation (i) with respect to Participating Dividendsa “Liquidation Event”), shall be the same day as the record date for the payment of dividends to the holders of shares of Common Series J Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Corporation available for distribution to its stockholders before any payment shall be made to the holders of Junior Stock by reason of their ownership thereof, an amount per share equal to the greater of (i) the “Common Stock Dividend Record Date”Series J Original Issue Price (as defined below), plus any accrued but unpaid dividends thereon, whether or not declared, and (ii) with respect such amount per share as would have been payable had all shares of Series J Preferred Stock been converted into Common Stock pursuant to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding Section 5 immediately prior to such Liquidation Event.”
Section 3.1 is also hereby amended by adding the applicable Annual Dividend Payment Date (such date, an following as the new last sentence thereof: “Annual Dividend Payment Record Date”).
(b) Without At the consent option of holders of a majority of the Holders representing outstanding Series J Preferred Stock, (i) a consolidation or merger of the Corporation with or into another entity or person, or any other corporate reorganization, in which the stockholders of the Corporation immediately prior to such consolidation, merger or reorganization do not hold at least a majority of the then-issued and outstanding shares resulting or surviving entities voting power immediately following such consolidation, merger or reorganization (solely in respect of Preferred Stocktheir equity interests), the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem a sale or otherwise acquire any Junior Securities (other than repurchases, redemptions transfer of all or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value substantially all of the Corporation’s assets would exceed for cash, securities or other property, shall be deemed to be a Liquidation Event.”
Section 4.1 is hereby amended to add the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share following at the Close of Business on such Annual Dividend Payment Record Date will be entitledend thereof: “Notwithstanding the foregoing, notwithstanding the related Fundamental with respect to any Major Transaction or conversion, (as applicable, to receive, on or, at defined below) that is approved by the Corporation’s electionboard of directors and presented to the stockholders of the Corporation for their action or consideration at any meeting of stockholders of the Corporation (or, before if applicable, by written consent of stockholders in lieu of meeting) (a “Major Transaction Stockholder Vote”), each holder of outstanding shares of Series J Preferred Stock shall be entitled to cast the number of votes equal to the number of whole shares of Common Stock into which the shares of Series J Preferred Stock held by such Annual Dividend Payment Date, such declared Annual Dividend holder are convertible as of the record date for determining stockholders entitled to vote on such sharematter (irrespective of whether any such conversion would result in economic gain or loss to the holder) and shall be entitled to notice of any such meeting of stockholders in accordance with the By-Laws of the Corporation. Except as provided in this Section 4(c)by law or as otherwise provided herein, Annual Dividends on with respect to any share Major Transaction Stockholder Vote, holders of Series J Preferred Stock will cease to accumulate from and after shall vote together with the Fundamental Transaction Date or Conversion Date, holders of Common Stock as applicablea single class.”
Appears in 2 contracts
Samples: Credit Agreement and Note and Warrant Purchase Agreement (Implant Sciences Corp), Secured Term Notes (Implant Sciences Corp)
Dividends. (a) Holders of In the issued and outstanding event that a distribution with respect to the shares of Preferred STAR III Common Stock permitted under the terms of this Agreement has a record date prior to the Merger Effective Time and has not been paid prior to the Closing Date, such distribution shall be paid to the holders of such shares of STAR III Common Stock on the Closing Date immediately prior to the Merger Effective Time. In the event that a distribution with respect to the shares of STAR Common Stock permitted under the terms of this Agreement has a record date prior to the Merger Effective Time and has not been paid prior to the Closing Date, such distribution shall be paid to the holders of such shares of STAR Common Stock on the Closing Date immediately prior to the Merger Effective Time. STAR III shall coordinate with STAR on the declaration, setting of record dates and payment dates of dividends on STAR III Common Stock so that holders of STAR III Common Stock (i) do not receive dividends on both STAR III Common Stock and STAR Common Stock received in the Merger in respect of a single distribution period or fail to receive a dividend on either STAR III Common Stock or STAR Common Stock received in the Merger in respect of a single distribution period or (ii) do not receive both a dividend permitted by the proviso to Section 6.2(b)(iii) on STAR Common Stock and a dividend permitted by the proviso to Section 6.1(b)(iii) on STAR III Common Stock received in the Merger or fail to receive either a dividend permitted by the proviso to Section 6.2(b)(iii) on STAR Common Stock or a dividend permitted by the proviso to Section 6.1(b)(iii) on STAR III Common Stock received in the Merger.
(b) In the event that either STAR III or STAR shall declare or pay any dividend or other distribution that is expressly permitted pursuant to the proviso at the end of Section 6.1(b)(iii) or Section 6.2(b)(iii), respectively, it shall notify the other Party at least twenty (20) days prior to the Closing Date, and such other Party shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
declare a dividend per share payable (i) Holders in the case of shares of Preferred Stock shall be entitled STAR III, to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of STAR III Common Stock, Convertible Securities or Optionsin an amount per share of STAR III Common Stock equal to the product of (A) as if immediately prior the dividend declared by STAR with respect to each share of STAR Common Stock Dividend Record Dateby (B) the Exchange Ratio, all shares and (ii) in the case of Preferred Stock then outstanding were converted into shares STAR, to holders of STAR Common Stock, in an amount per share of STAR Common Stock equal to the quotient obtained by dividing (x) the dividend declared by STAR III with respect to each share of STAR III Common Stock by (y) the Exchange Ratio. Dividends The record date and time and payment date and time for any dividend payable pursuant to this Section 4(a)(i) (the “Participating Dividends”7.8(b) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Closing Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 2 contracts
Samples: Merger Agreement (Steadfast Apartment REIT, Inc.), Merger Agreement (Steadfast Apartment REIT III, Inc.)
Dividends. (a) Holders The holders of the issued and outstanding shares of Series E Preferred Stock, in preference to the holders of Series D Preferred Stock, Series C Preferred Stock, Series B Preferred Stock, Series A Preferred Stock and Common Stock, shall be entitled to receive, when, as and if declared by the Board of Directors out of funds legally available therefor, noncumulative dividends at the assets rate of eight percent (8%) per share of the Corporation legally available Series E Original Issue Price per annum (as adjusted for the payment of subsequent stock dividends, dividends on stock splits, combinations, recapitalizations or the terms described below:like with respect to such share) from the date of original issuance of such share (the "Closing Date").
(ib) Holders The holders of shares of Series D Preferred Stock, in preference to the holders of Series C Preferred Stock, Series B Preferred Stock, Series A Preferred Stock and Common Stock, shall be entitled to participate equally receive, when, as and ratably if declared by the Board of Directors out of funds legally available therefor, noncumulative dividends at the rate of eight percent (8%) per share of the Series D Original Issue Price per annum (as adjusted for subsequent stock dividends, stock splits, combinations, recapitalizations or the like with respect to such share) from the Closing Date with respect to such share.
(c) The holders of shares of Series C Preferred Stock, in preference to the holders of Series B Preferred Stock, Series A Preferred Stock and Common Stock in all Stock, shall be entitled to receive, when, as and if declared by the Board of Directors out of funds legally available therefor, noncumulative dividends paid on at the rate of eight percent (8%) per share of the Series C Original Issue Price per annum (as adjusted for subsequent stock dividends, stock splits, combinations, recapitalizations or the like with respect to such share) from the Closing Date with respect to such share.
(d) The holders of shares of Common Series B Preferred Stock (other than dividends paid and Series A Preferred Stock, in preference to the form holders of Common Stock, Convertible Securities or Optionsshall be entitled to receive, when, as and if declared by the Board of Directors out of funds legally available therefor, noncumulative dividends at the rate of eight percent (8%) as if immediately prior to each Common Stock Dividend Record Date, all shares per share of the applicable Original Issue Price of such series of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant per annum (as adjusted for subsequent stock dividends, stock splits, combinations, recapitalizations or the like with respect to this Section 4(a)(isuch share) (from the “Participating Dividends”) shall be payable on the same date that Closing Date with respect to such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stockshare.
(iie) In addition Subject to obtaining any consent required under Section A.8(f) below, after the foregoing dividends pursuant to Section 4(a)(i)on the Preferred Stock shall have been paid, then the Corporation shall pay, subject to Section 4(c), ifmay (when, as and when if declared by the Board of Directors, out of funds of ) declare and distribute in such year dividends among the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share holders of Preferred Stock (and the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares holders of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), pro rata based on the number of shares of Common Stock to be delivered shall be held by each, determined by dividing on an as-if-converted basis (assuming full conversion of all such shares of such series of Preferred Stock) as of the Dividend PIK Amount by the 10-Day VWAP record date with respect to the declaration of such Annual Dividend Payment Date; provided thatdividends. For the avoidance of doubt, where the Corporation has determined holders of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and Series E Preferred Stock shall participate on a pari passu basis in its sole discretion any distribution or dividend declared or paid to pay a Dividend PIK Amountthe Common Stock or any series of Preferred Stock ranking junior to the Series A Preferred Stock, if Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and Series E Preferred Stock on the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) basis of the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that into which it is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAPthen convertible.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 2 contracts
Samples: Loan and Security Agreement (908 Devices Inc.), Loan and Security Agreement (908 Devices Inc.)
Dividends. In the event that the Corporation declares a dividend (aother than a dividend payable in Common Stock, Options or Convertible Securities, or a cash dividend payable out of earnings or earned surplus) Holders upon Common Stock, then at the option of the issued and holders of a majority of the outstanding shares of Preferred Stock shall be entitled to receive, out of the assets of Stock,
(1) the Corporation legally available for the payment of dividendsshall pay over to each holder, dividends on the terms described below:
(i) Holders dividend payment date, the cash, stock or other securities and other property which holder would have received if such holder had converted all of his or its shares of Preferred Stock shall be entitled to participate equally into Common Stock and ratably with had been the record holder of such Common Stock on the date on which a record is taken for the purpose of such dividend, or, if a record is not taken, the date as of which the holders of shares Common Stock of record entitled to such dividend are to be determined, or
(2) the Conversion Price in effect immediately prior to the declaration of such dividend shall be reduced by an amount equal to the amount of such dividend payable per share of Common Stock, in the case of a cash dividend, or by the fair value of such dividend per share (as reasonably determined by the Board of Directors of the Corporation), in the case of any other dividend, such reduction to be effective on the date as of which a record is taken for purposes of such dividend, or if a record is not taken, the date as of which holders of record of Common Stock entitled to such dividend are determined, or
(3) in all dividends paid the case of a dividend consisting of stock or securities (other than Common Stock, Options or Convertible Securities) or other property distributable to holders of Common Stock, the holder of Preferred Stock may elect that, in lieu of (1) or (2) above, lawful and adequate provisions shall be made (including without limitation any necessary reduction in the Conversion Price) whereby such holder of Preferred Stock shall thereafter have the right to purchase and/or receive, on the terms and conditions specified in this Certificate of Designations and in addition to the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if receivable immediately prior to each Common Stock Dividend Record Date, all the declaration of such dividend upon conversion of his or its shares of Preferred Stock then outstanding were converted into Stock, such shares of Common Stock. Dividends payable pursuant stock, securities or property as are distributable with respect to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of outstanding shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect receivable immediately prior to such Annual Dividend Payment Date; provided thatdeclaration upon conversion of his or its shares of Preferred Stock, where to the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if end that the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than provisions hereof (including without limitation provisions for adjustments of the Floor Price, (A) Conversion Price and of the number of shares receivable upon such conversion) shall thereafter be applicable, as nearly as may be, in relation to such shares of stock, securities or property. For the purposes of this Section 4.6, "dividend" shall mean any distribution to the holders of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) as such, and a dividend shall be calculated by dividing considered payable out of earnings or earned surplus (vother than revaluation or paid-in surplus) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata only to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend extent that such earnings or Annual Dividend shall be payable earned surplus are charged an amount equal to the Holders fair value of Preferred Stock such dividend as they appear on the Register at the Close of Business on the record date designated reasonably determined by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 2 contracts
Samples: Purchase Agreement (Bianco Joseph J), Purchase Agreement (Alliance Entertainment Corp)
Dividends. (a) Holders of the issued and outstanding shares The holders of Preferred Stock shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally when and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Corporation’s Board of Directors, out of any funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for preferential non-cumulative dividends in cash at the applicable Payment Period or Payment Periods dividends on each outstanding share rate of Preferred Stock (the “Annual Dividends”i) at a rate per annum five and four-hundredths cents (calculated on the basis of an actual 365- or 366-day year, as applicable$0.0504) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (as adjusted for any stock dividends, combinations, splits, recapitalizations or the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP like with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (Ashares) the number per annum for each share of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Series A Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”)Stock, and (ii) eleven and forty-four-hundredths cents ($0.1144) per share (as adjusted for any stock dividends, combinations, splits, recapitalizations or the like with respect to Annual Dividends, such shares) per annum for each share of Series B Preferred Stock. Any such dividends shall be not more than thirty (30) days nor less than ten (10) days preceding distributed ratably among the applicable Annual Dividend Payment Date (holders of Series A Preferred Stock and Series B Preferred Stock in proportion to the full amount each such date, an “Annual Dividend Payment Record Date”holder is otherwise entitled to receive under this Subsection 6(a).
(b) Without No dividends or other distributions (whether payable in cash, securities, property or other assets) shall be paid on any Common Stock until (i) all dividends accrued or declared but unpaid on the consent Preferred Stock shall have been paid in full and (ii) in the event that the Corporation’s Board of Directors have not declared a dividend on the Holders representing at least a majority of Preferred Stock during the then-issued current calendar year, all dividends are paid in full on the Preferred Stock as if such Board had declared a dividend on the Preferred Stock pursuant to Subsection 6(a) above during the then-current calendar year.
(c) Subject to Subsection 6(b) above, dividends and outstanding distributions may be declared and paid on Common Stock from funds lawfully available therefor as and when determined by the Board of Directors of the Corporation; provided, however, that when and as dividends and distributions are declared and paid on shares of Preferred Common Stock, the Corporation shall not declare and pay at the same time to each holder of Preferred Stock, in addition to that which may be paid to satisfy the conditions set forth in Subsection 6(b) above, a dividend or distribution equal to the dividend or distribution which would have been payable to such holder if the shares of Preferred Stock held by such holder had been converted into Common Stock on the record date for the determination of holders of Common Stock entitled to receive such dividend or distribution.
(id) declare, pay or set aside for payment any No dividends or distributions upon any Junior Securities shall be declared or paid on the Common Stock or Preferred Stock except as set forth in this Section 6.
(iie) repurchaseAs used herein, redeem “distribution” means the transfer of cash or property without consideration, whether by way of dividend or otherwise acquire any Junior Securities (other than repurchases, redemptions except a dividend in shares of Common Stock) or acquisitions the purchase of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements capital stock of the Corporation for cash or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable lawproperty.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 2 contracts
Samples: Loan and Security Agreement (AtriCure, Inc.), Common Stock Purchase Warrant (AtriCure, Inc.)
Dividends. (aA) Holders Subject to the prior and superior rights of the issued and outstanding holders of any shares of any other series of Preferred Stock of the Corporation ("Preferred Stock"), or any similar stock ranking prior and superior to the shares of the Eighth Series with respect to dividends, the holders of shares of the Eighth Series, in preference to the holders of Common Stock and any shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the shares of the Eighth Series (collectively with such Common Stock, "Junior Stock"), shall be entitled to receive, when, as and if declared by the Board of Directors out of the assets of the Corporation funds legally available for the payment purpose, quarterly dividends payable in cash, on January 1, April 1, July 1 and October 1 in each year (each such date being referred to herein as a "Quarterly Dividend Payment Date") in an amount (rounded to the nearest cent) equal to the greater of (a) $100.00 or (b) the product of the PCS Group Multiple (as defined below) times the aggregate per share amount of all cash dividends, plus the product of the PCS Group Multiple times the aggregate per share amount (payable in cash, based upon the fair market value at the time the non-cash dividend or other distribution is declared as determined in good faith by the Board of Directors) of all non- cash dividends or other distributions other than a dividend payable in shares of PCS Group Common Stock, or a subdivision of the outstanding shares of PCS Group Common Stock (by reclassification or otherwise), declared (but not withdrawn) on the terms described below:PCS Group Common Stock since the immediately preceding Quarterly Dividend Payment Date, or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a share of the Eighth Series.
(B) As used herein, the PCS Group Multiple shall initially be 1,000. In the event the Corporation shall (i) Holders declare any dividend on PCS Group Common Stock payable in shares of PCS Group Common Stock, (ii) subdivide the outstanding PCS Group Common Stock, or (iii) combine the outstanding PCS Group Common Stock into a smaller number of shares, then in each such case the PCS Group Multiple shall be adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Preferred PCS Group Common Stock outstanding immediately after such event and the denominator of which is the number of shares of PCS Group Common Stock that were outstanding immediately prior to such event.
(C) The Corporation shall declare a dividend or distribution on the Eighth Series as provided above in paragraph (A) of this Section (2) immediately after it declares a dividend or distribution on the PCS Group Common Stock (other than a dividend payable in shares of PCS Group Common Stock); provided, however, that in the event no dividend or distribution shall have been declared on the PCS Group Common Stock during the period between any Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend Payment Date, the minimum quarterly dividend of $100.00 on the Eighth Series shall nevertheless be entitled payable on such subsequent Quarterly Dividend Payment Date.
(D) Dividends shall begin to participate equally accrue and ratably with be cumulative on outstanding shares of Eighth Series from the Quarterly Dividend Payment Date next preceding the date of issue of such shares of Eighth Series, unless the date of issue of such shares of Eighth Series is prior to the record date for the first Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to accrue from the date of issue of such shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a date after the record date for the determination of holders of shares of Common Stock Eighth Series entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in all either of which cases such dividends shall begin to accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall cumulate but shall not bear interest. Dividends paid on the shares of Common Stock (other Eighth Series in an amount less than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in such dividends at the time accrued and payable on such shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid allocated pro rata to the Holders of on a share-by-share basis among all such shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”)time outstanding.
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 2 contracts
Samples: Rights Agreement (Sprint Corp), Rights Agreement (Sprint Corp)
Dividends. (a) Holders Subject to the preferential rights of holders of any class or series of Senior Stock, holders of the issued and outstanding shares of Series 1 Preferred Stock shall be entitled to receive, when and as authorized by the Board of Directors and declared by the Corporation, out of the assets of the Corporation funds legally available for the payment of dividends, cash dividends on at the terms described below:
rate of 5.50% per annum of the initial stated value of $1,000 per share (ithe "Stated Value") Holders (equivalent to a fixed annual rate of shares of Preferred Stock $55.00 per share); provided, however, that, Qualified Purchasers shall be entitled to participate equally receive, when and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared authorized by the Board of DirectorsDirectors and declared by the Corporation, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of dividends, cash dividends at the rate of 5.75% per annum of the Stated Value (equivalent to a fixed annual rate of $57.50 per share) until April 7, 2018, at which time, such dividend rate will revert automatically to 5.50% per annum of the Stated Value; provided further, however, that if a Listing Event has not occurred by April 7, 2018, the annual dividend rate on each share of Series 1 Preferred Stock will be increased to 7.00% of the Stated Value (equivalent to a fixed annual rate of $70.00 per share) until the occurrence of a Listing Event, at which time, the dividend rate on each share of Series 1 Preferred Stock will revert automatically to 5.50% per annum of the Stated Value. The dividends on each share of Series 1 Preferred Stock shall be cumulative from the first date on which such shares of Series 1 Preferred Stock is issued and shall be payable annually in arrearsmonthly on the 12th day of the month following the month for which the dividend was declared or, ifif not a business day, as and when so authorized and declared by the Board of Directorsnext succeeding business day (each, on each Annual a "Dividend Payment Date"); provided, commencing that, no holder of any shares of Series 1 Preferred Stock shall be entitled to receive any dividends paid or payable on the first Annual Series 1 Preferred Stock with a Dividend Payment Date following before the Issuance Date date such shares of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Series 1 Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of are issued. Any dividend payable on the Series 1 Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments for any partial dividend period shall be aggregated per Holder and shall be made to computed ratably on the nearest cent (with $0.005 being rounded upward).
(iii) The Annual basis of a 360-day year consisting of twelve 30-day months. Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product arrears to holders of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock record as they appear in the stock records of the Corporation at the close of business on the Register at the Close 24th day of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock each month (the “Common Stock "Dividend Record Date”"). The term "business day" shall mean any day, and (ii) with respect other than Saturday, Sunday, or a day on which banking institutions in the State of New York are authorized or obligated by law to Annual Dividendsclose, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”)or a day which is or is declared a national or a New York state holiday.
(b) Without Holders of Series 1 Preferred Stock shall not be entitled to any dividends in excess of cumulative dividends, as herein provided, on the consent Series 1 Preferred Stock. Any dividend payment made on the Series 1 Preferred Stock shall first be credited against the earliest accrued but unpaid dividend due with respect to such shares which remains payable.
(c) No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on the Holders representing at least Series 1 Preferred Stock that may be in arrears.
(d) When dividends are not paid in full upon the Series 1 Preferred Stock or any other class or series of Parity Stock, or a majority of sum sufficient for such payment is not set apart, all dividends declared upon the then-issued Series 1 Preferred Stock and outstanding any shares of Parity Stock shall be declared ratably in proportion to the respective amounts of dividends accumulated, accrued and unpaid on the Series 1 Preferred StockStock and accumulated, the Corporation accrued and unpaid on such Parity Stock (which shall not include any accumulation in respect of unpaid dividends for prior dividend periods if such Parity Stock does not have a cumulative dividend).
(ie) declareExcept as set forth in the preceding paragraph, pay unless full cumulative dividends equal to the full amount of all accumulated, accrued and unpaid dividends on the Series 1 Preferred Stock have been, or are concurrently therewith, declared and paid, or declared and set aside apart for payment any payment, for all past dividend periods, no dividends (other than dividends or distributions upon paid in shares of Junior Stock or options, warrants or rights to subscribe for or purchase shares of Junior Stock) shall be declared and paid or declared and set apart for payment by the Corporation and no other distribution of cash or other property may be declared and made, directly or indirectly, by the Corporation with respect to any shares of Junior Securities Stock or (ii) repurchaseParity Stock, redeem nor shall any shares of Junior Stock or Parity Stock be redeemed, purchased or otherwise acquire any Junior Securities acquired (other than repurchasesa redemption, redemptions purchase or acquisitions other acquisition of shares Common Stock made for purposes of Junior Securities with respect to an equity awards (including in connection with “cashless” incentive or “net” exercises of Options, payment benefit plan of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its SubsidiariesCorporation) for any consideration (or pay any moneys monies be paid to or make made available for a sinking fund for the redemption of any shares of any such stock), directly or indirectly, by the Corporation (except by conversion into or exchange for shares of Junior SecuritiesStock, unlessor options, warrants or rights to subscribe for or purchase shares of Junior Stock), nor shall any other cash or other property be paid or distributed to or for the benefit of holders of shares of Junior Stock or Parity Stock.
(f) Notwithstanding the foregoing provisions of this Section 4, the Corporation shall not be prohibited from (i) declaring or paying or setting apart for payment any dividend or other distribution on any shares of Junior Stock or Parity Stock, or (ii) redeeming, purchasing or otherwise acquiring any Junior Stock or Parity Stock, in each case, (A) immediately before if such declaration, payment, setting apart for payment, redemption, purchase or other acquisition is necessary in order to comply with the restrictions on transfer and after the taking of such action, the fair value ownership set forth in Article VI of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable lawCharter.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 2 contracts
Samples: Merger Agreement (MVP REIT, Inc.), Merger Agreement (MVP REIT II, Inc.)
Dividends. (a) Holders Cinergy shall not, nor shall it permit any of the issued and outstanding shares of Preferred Stock shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:its subsidiaries to,
(i) Holders declare, set aside or pay any dividends on or make other distributions in respect of shares any of Preferred Stock shall be entitled to participate equally its capital stock or share capital, except:
(A) that Cinergy may continue the declaration and ratably with the holders payment of shares of Common Stock in all regular quarterly cash dividends paid on the shares of Common Stock (other than dividends paid in the form of Cinergy Common Stock, Convertible Securities or Options) as if immediately prior not to each Common Stock Dividend Record Dateexceed $0.48 per share, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that with usual record and payment dates for such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c)past dividend practice; provided, Annual Dividends shall accrue that if the Cinergy Effective Time does not occur between a record date and accumulate on payment date of a daily basis from the Issuance Date of such shareregular quarterly dividend, whether or not a special dividend may be declared and whether or not the Corporation has funds legally available for the payment paid in respect of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Cinergy Common Stock (such amount with respect to any Annual Dividend Payment Datethe quarter in which the Cinergy Effective Time occurs with a record date in such quarter and on or prior to the date on which the Cinergy Effective Time occurs, which dividend does not exceed an amount equal to the “Dividend PIK Amount”), product of (i) a fraction the (x) numerator of which is equal to the number of shares days between the last payment date of Common Stock a regular quarterly dividend and the record date of such special dividend (excluding such last payment date but including the record date of such special dividend) and (y) the denominator of which is equal to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares days between the last payment date of Common Stock that are permitted to be delivered a regular quarterly dividend and the same calendar day in partial the third month after the month in which such last payment of the Dividend PIK Amount date occurred (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cashexcluding such last payment date but including such same calendar day), which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10then permitted quarterly dividend per share, and
(B) for the declaration and payment of dividends by a direct or indirect wholly-Day VWAP.owned subsidiary solely to its parent, or by a direct or indirect partially owned subsidiary of Cinergy (provided that Cinergy or the Cinergy subsidiary receives or is to receive its proportionate share of such dividend or distribution), and
(C) for the declaration and payment of regular cash dividends with respect to preferred stock of Cinergy's subsidiaries outstanding as of the date of the Agreement or permitted to be issued under the terms of this Agreement, and
(D) to the extent advisable in the exercise of the fiduciary duties of the Board of Directors of Cinergy, for the declaration and payment of a customary share purchase rights plan, provided, that, (1) Cinergy shall provide Duke prior notice of any such declaration or payment and (2) in connection with any such declaration or payment, the Board of Directors of Cinergy and Cinergy shall cause (x) this Agreement and the transactions contemplated hereby to not result in a "Distribution Date" (as such term may be defined in any such share purchase rights plan) or similar event under such share purchase rights plan and (y) any such share purchase rights plan to be inapplicable in all respects to this Agreement, the Duke Merger, the Cinergy Merger and the other transactions contemplated hereby; and
(ii) split, combine, reclassify or take similar action with respect to any of its capital stock or share capital or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or comprised in its share capital,
(iii) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or other reorganization, or
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock except as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (idisclosed in Section 4.01(c)(iv) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred StockCinergy Disclosure Letter, the Corporation shall not (i) declaredirectly or indirectly redeem, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem repurchase or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities its capital stock or any Option with respect to equity awards thereto except:
(including A) in connection with “cashless” intercompany purchases of capital stock or “net” exercises of Optionsshare capital, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), or
(B) immediately after for the taking purpose of such actionfunding the Cinergy Employee Stock Option Plans or employee stock ownership or dividend reinvestment and stock purchase plans, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and or
(C) such action is otherwise mandatory repurchases or redemptions of preferred stock of Cinergy's subsidiaries in compliance accordance with applicable lawthe terms thereof.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 2 contracts
Samples: Merger Agreement (Cinergy Corp), Merger Agreement (Duke Energy Corp)
Dividends. (aA) Holders Subject to the prior and superior rights of the issued and outstanding holders of any shares of any other series of Preferred Stock of the Corporation ("Preferred Stock"), or any similar stock ranking prior and superior to the shares of the Sixth Series with respect to dividends, the holders of shares of the Sixth Series, in preference to the holders of Common Stock and any shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the shares of the Sixth Series (collectively with such Common Stock, "Junior Stock"), shall be entitled to receive, when, as and if declared by the Board of Directors out of the assets of the Corporation funds legally available for the payment purpose, quarterly dividends payable in cash, on January 1, April 1, July 1 and October 1 in each year (each such date being referred to herein as a "Quarterly Dividend Payment Date") in an amount (rounded to the nearest cent) equal to the greater of (a) $100.00 or (b) the product of the FON Group Multiple (as defined below) times the aggregate per share amount of all cash dividends, plus the product of the FON Group Multiple times the aggregate per share amount (payable in cash, based upon the fair market value at the time the non-cash dividend or other distribution is declared as determined in good faith by the Board of Directors) of all non-cash dividends or other distributions other than a dividend payable in shares of FON Group Common Stock, or a subdivision of the outstanding shares of FON Group Common Stock (by reclassification or otherwise), declared (but not withdrawn) on the terms described below:FON Group Common Stock since the immediately preceding Quarterly Dividend Payment Date, or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a share of the Sixth Series.
(B) As used herein, the FON Group Multiple shall initially be 1,000. In the event the Corporation shall (i) Holders declare any dividend on FON Group Common Stock payable in shares of such stock, (ii) subdivide the outstanding FON Group Common Stock, or (iii) combine the outstanding FON Group Common Stock into a smaller number of shares, then in each such case the FON Group Multiple shall be adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Preferred FON Group Common Stock outstanding immediately after such event and the denominator of which is the number of shares of FON Group Common Stock that were outstanding immediately prior to such event.
(C) The Corporation shall declare a dividend or distribution on the Sixth Series as provided above in paragraph (A) of this Section (2) immediately after it declares a dividend or distribution on the FON Group Common Stock (other than a dividend payable in shares of FON Group Common Stock); provided, however, that in the event no dividend or distribution shall have been declared on the FON Group Common Stock during the period between any Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend Payment Date, the minimum quarterly dividend of $100.00 on the Sixth Series shall nevertheless be entitled payable on such subsequent Quarterly Dividend Payment Date.
(D) Dividends shall begin to participate equally accrue and ratably with be cumulative on outstanding shares of Sixth Series from the Quarterly Dividend Payment Date next preceding the date of issue of such shares of Sixth Series, unless the date of issue of such shares of Sixth Series is prior to the record date for the first Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to accrue from the date of issue of such shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a date after the record date for the determination of holders of shares of Common Stock Sixth Series entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in all either of which cases such dividends shall begin to accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall cumulate but shall not bear interest. Dividends paid on the shares of Common Stock (other Sixth Series in an amount less than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in such dividends at the time accrued and payable on such shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid allocated pro rata to the Holders of on a share-by-share basis among all such shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”)time outstanding.
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 2 contracts
Samples: Rights Agreement (Sprint Corp), Rights Agreement (Sprint Corp)
Dividends. Subject to the preferences accorded to the holders of the Preferred shares:
(a) Holders The holders of the issued and outstanding shares of Preferred Stock Proportionate Voting Shares shall be entitled to receive, out receive such dividends payable in cash or property of the assets Company as may be declared by the Board of Directors from time to time. The Board of Directors may declare no dividend payable in cash or property (other than a stock dividend payable in Common Shares or Proportionate Voting Shares) on the Proportionate Voting Shares unless the Board of Directors simultaneously declare a dividend payable in cash or property on the Common Shares (other than a stock dividend payable in Common Shares) in an amount equal to the amount of the Corporation legally available for the payment dividend declared per Proportionate Voting Share divided by [one thousand (1000)].
(b) The Board of dividends, dividends Directors may declare a stock dividend payable in Proportionate Voting Shares on the terms described belowProportionate Voting Shares or Common Shares on the Proportionate Voting Shares, but only if the Board of Directors simultaneously declares a stock dividend payable in:
(i) Holders in the case of a stock dividend payable in Proportionate Voting Shares on the Proportionate Voting Shares (or fraction thereof), Common Shares on the Common Shares, in a number of shares of Preferred Stock shall be entitled per Common equal to participate equally and ratably with the holders number of shares of Common Stock in all dividends paid on the shares of Common Stock declared per Proportionate Voting Share (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.fraction thereof); or
(ii) In addition to any dividends pursuant to Section 4(a)(iin the case of a stock dividend payable in Common Shares on the Proportionate Voting Shares (or fraction thereof), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated Common Shares on the basis Common Shares, in a number of an actual 365- or 366-day year, as applicable) shares per Common Share equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, declared per Proportionate Voting Share (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”fraction thereof), and divided by [one thousand (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”1000).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law].
(c) If the Fundamental Transaction Date or Conversion Date Holders of fractional Proportionate Voting Shares shall be entitled to receive any share of Preferred Stock is after an Annual Dividend Payment Record Date for a dividend declared Annual Dividend on the Preferred Stock but occurs on or prior Proportionate Voting Shares, in an amount equal to the next Annual Dividend Payment Date, then dividend per Proportionate Voting Share multiplied by the Holder of fraction thereof held by such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicableholder.
Appears in 2 contracts
Samples: Transaction Agreement (Columbia Care Inc.), Transaction Agreement
Dividends. (a) Holders The holders of the issued and outstanding shares of Series B Preferred Stock shall be entitled to receivereceive non-cumulative cash dividends, out of any assets legally available therefor, prior and in preference to any declaration or payment of any dividend on shares of Series A Preferred Stock and Common Stock (payable other than in Common Stock or other securities and rights convertible into or entitling the assets holder thereof to receive, directly or indirectly, additional shares of Common Stock of the Corporation legally available for Corporation) at the payment rate of dividendseight percent (8%) of the Series B Original Issue Price (as defined below) per share of Series B Preferred Stock per annum, dividends on payable only when, as and if declared by the terms described below:
(i) Holders Board of shares Directors of the Corporation. The holders of Series A Preferred Stock shall be entitled to participate equally receive non-cumulative cash dividends, out of any assets legally available therefor, prior and ratably with the holders in preference to any declaration or payment of shares of Common Stock in all dividends paid any dividend on the shares of Common Stock (payable other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Dateor other securities and rights convertible into or entitling the holder thereof to receive, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stockdirectly or indirectly, and no dividends shall be payable to holders of additional shares of Common Stock unless of the full dividends contemplated by this Section 4(a)(iCorporation) are paid at the same time to the Holders rate of eight percent (8%) of the Series A Original Issue Price (as defined below) per share of Series A Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i)Stock per annum, the Corporation shall pay, subject to Section 4(c), ifpayable only when, as and when if declared by the Board of DirectorsDirectors of the Corporation. The Corporation shall not declare, out pay or set aside any dividends on shares of funds any other class or series of capital stock of the Corporation legally available therefor(other than dividends on shares of Common Stock payable in shares of Common Stock) unless (in addition to the obtaining of any consents required elsewhere in the Certificate of Incorporation) the holders of the Series B Preferred Stock and Series A Preferred Stock then outstanding shall first receive, on each Annual Dividend Payment Date for or simultaneously receive, in addition to the applicable Payment Period dividend described in the first or Payment Periods dividends second sentences of this Subsection 1, as applicable, a dividend on each outstanding share of Series B Preferred Stock and Series A Preferred Stock in an amount at least equal to (i) in the “Annual Dividends”) at case of a rate dividend on Common Stock or any class or series that is convertible into Common Stock, that dividend per annum (calculated on the basis share of an actual 365- Series A Preferred Stock or 366-day yearSeries B Preferred Stock, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by would equal the Board product of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cashthe dividend payable on each share of such class or series determined, if applicable, as if all shares of such class or series had been converted into Common Stock and (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment issuable upon conversion of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion a share of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Series A Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Series B Preferred Stock Stock, as they appear on the Register at the Close of Business applicable, in each case calculated on the record date designated by the Board for determination of Directors for holders entitled to receive such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities dividend or (ii) repurchasein the case of a dividend on any class or series that is not convertible into Common Stock, redeem at a rate per share of Series A Preferred Stock or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Series B Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.determined
Appears in 1 contract
Samples: Warrant Agreement (Vapotherm Inc)
Dividends. (a) Holders of the issued and outstanding shares of The Series A-2 Preferred Stock shall has a cumulative dividend of 4.5% per annum, and is payable quarterly in arrears on the 1st day of January, April, July and October in each year (or the first business day thereafter) with the first such payment to be entitled to receivemade January 1, out of the assets of the Corporation legally available for the payment of dividends, 2007. The Company may pay accrued dividends on the terms described below:
Series A-2 Preferred Stock either in cash or by issuing additional shares of Series A-2 Preferred Stock with an aggregate Stated Value (ias hereinafter defined) Holders equal to the amount of such accrued dividends to be paid in shares of Series A-2 Preferred Stock; provided, that, except upon a conversion of shares of Series A-2 Preferred Stock, the Company shall not be permitted to pay dividends on the Series A-2 Preferred Stock shall be entitled to participate equally and ratably with in cash for the holders first two years following the date of the initial issuance of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Series A-2 Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend RateInitial Issuance Date”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c)certain exceptions set forth in the Certificate of Designation, Annual Dividends shall accrue and accumulate on a daily basis from so long as the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Series A-2 Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Dateremains outstanding, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation Company shall not (i) declare, pay or set aside apart for payment any dividends or distributions upon dividend on any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise Junior Stock or purchase price of Optionsmake any payment on account of, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) set apart for any consideration or pay any moneys or make available payment money for a sinking or other similar fund for, the purchase, redemption or other retirement of, any of the Junior Stock or any warrants, rights, calls or options exercisable for or convertible into any of the redemption of Junior Stock, or make any distribution in respect thereof, either directly or indirectly, and whether in cash, obligations or shares of such Junior Securitiesthe Company or other property, unless, in each case, (A) immediately before and after shall not permit any corporation or other entity directly or indirectly controlled by the taking of such action, the fair value Company to purchase or redeem any of the Corporation’s assets would exceed the sum of its debts (including Junior Stock or any warrants, rights, calls or options exercisable for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends or convertible into any of the Junior Stock, unless prior to or concurrently with such declaration, payment, setting apart for payment, purchase, redemption and/or distribution, as the case may be, all accrued and unpaid dividends on shares of the Series A-2 Preferred Stock not paid on the dates such dividends are required to be paid shall have been or are paid. Accrued dividends on the shares of Series A-2 Preferred Stock that are paid through the issuance by the Company of additional shares of Series A-2 Preferred Stock), (B) immediately after the taking of such action, the Corporation, shall be considered paid in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable lawfull.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 1 contract
Samples: Subscription and Standby Commitment Agreement (Westpoint International Inc)
Dividends. (ai) Holders The holders of the issued and outstanding shares of Series B --------- Preferred Stock shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally when and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of dividends, cumulative dividends at the annual rate (subject to adjustment as set forth in subparagraph (iv) below) of $8.50 per share in equal quarterly payments on the last business day of each calendar quarter (each of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual dates being a "Dividend Payment Date"), commencing with the last day of the calendar quarter in which the shares of Series B Preferred Stock are issued, in preference to dividends on the first Annual Junior Securities. Such dividends shall be paid to the holders of record at the close of business on the date which is ten (10) business days prior to the Dividend Payment Date. Each of such quarterly dividends (whether payable in cash or in stock) shall be fully cumulative and shall accrue (whether or not declared), without interest, from the Date of Issuance. Subject to subparagraph (iii) below, any dividend payments due with respect to the Series B Preferred Stock on any Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to by issuing fully paid and non- assessable shares of Series C Preferred Stock, valued as set forth below (a "PIK Dividend"); provided, however, that in lieu of issuing shares of Series C Preferred Stock, dividends may be paid, in the nearest cent sole discretion of the Corporation, in cash or any combination of cash and Series C Preferred Stock. The issuance of such shares or the issuance of such shares together with payment of cash in lieu of the issuance of any shares shall constitute full payment of such dividend.
(with ii) Shares of Series C Preferred Stock used for the purpose of paying dividends on the Series B Preferred Stock will be valued at $0.005 being rounded upward)100.00 per share.
(iii) The Annual Dividends may, at In the option of event that the Corporation is no longer a party to any Restrictive Agreement (as defined below) prohibiting the payment of cash dividends on the Series B Preferred Stock, dividend payments with respect to the Series B Preferred Stock shall be made in cash. "Restrictive Agreement" shall mean any agreement to which the Corporation is a party on the date hereof (including as modified, amended, extended, refinanced or replaced) which by its sole discretion, be paid terms restricts the Corporation's ability to (A) pay dividends in cash, cash with respect to the Series B Preferred Stock or (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if redeem the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Series B Preferred Stock, the Corporation shall excluding any such agreement which has been substantially assigned to a party which is not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend party thereto on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicabledate hereof.
Appears in 1 contract
Samples: Stock Purchase Agreement (Unc Inc)
Dividends. (a) Holders The holders of the issued and outstanding shares preferred stock of Preferred Stock each series shall be entitled to receivereceive dividends, out payable quarterly or annually on such dates as may be fixed for such series, when and as declared by the board of directors, at the rate fixed for such series and no more. Dividends on each share of each series shall commence to accrue and be cumulative from the first day of the assets current dividend period within which such share was issued. A "dividend period" in respect of any share is the period between any two consecutive dividend payment dates, including the first of these dates, as fixed for the series to which the share shall belong. If for any past or current dividend period or periods, dividends shall not have been paid or declared and set apart for payment upon all outstanding shares of any series at the rate fixed for such series, the deficiency shall be fully paid, or dividends in the amount of such deficiency shall be declared and set apart for payment before, any dividend shall be declared and paid upon common stock of the Corporation legally available or upon any other shares ranking junior to the preferred stock; provided, however, that dividends in full shall not be declared and set apart for payment or paid on preferred stock of any one series for any dividend period unless dividends in full have been or are contemporaneously declared and set apart for payment or paid on preferred stock of all series for the payment of dividends, dividend periods terminating on the same or an earlier date when dividends on preferred stock of any one or more series are not paid in full at the terms described below:
(i) Holders stated rate, the preferred stock of shares all series shall share ratably in any payments of Preferred Stock shall be entitled to participate equally and ratably dividends in accordance with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall sums which would be payable on the preferred stock if dividends for all dividend periods terminating on the same or an earlier date that such were declared and paid in full. Accumulations of dividends are payable to holders shall not bear interest. After full cumulative dividends upon the preferred stock of shares of Common Stockall series then outstanding for all past dividend periods and for the current dividend period shall have been paid or declared and set apart for payment, then, and no not otherwise, dividends shall may be payable to holders of declared and paid upon shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time ranking junior to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i)preferred stock subject, the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividendshowever, to the extent unpaid, shall restrictions set forth in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion paragraph 4 of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.subdivision B.
Appears in 1 contract
Samples: Merger Agreement (Condor West Corp)
Dividends. (a) Holders a. Subject to the prior and superior rights of the issued and outstanding holders of shares of Preferred any other series of Preference Stock or other class of capital stock of the Corporation ranking prior and superior to the shares of this Series with respect to dividends, the holders of shares of this Series shall be entitled to receive, when, as and if declared by the Board of Directors, out of the assets of the Corporation legally available for therefor, (1) quarterly dividends payable on the first day of each of March, June, September and December (each such date being referred to herein as a "Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend Payment Date after the first issuance of a share or a fraction of a share of this Series, in the amount of $.01 per whole share (rounded to the nearest cent) less the amount of all cash dividends declared on this Series pursuant to the following clause (2) since the immediately preceding Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a share of this Series (the total of which shall not, in any event, be less than zero), and (2) dividends payable in cash on the payment of dividends, dividends date for each cash dividend declared on the terms described below:
Common Stock in an amount per whole share (rounded to the nearest cent) equal to the Formula Number (as hereinafter defined) then in effect times the cash dividends then to be paid on each share of Common Stock, par value $1.00, of the Corporation (the "Common Stock"). In addition, if the Corporation shall pay any dividend or make any distribution on the Common Stock payable in assets, securities or other forms of noncash consideration (other than dividends or distributions solely in shares of Common Stock), then, in each such case, the Corporation shall simultaneously pay or make on each outstanding whole share of this Series a dividend or distribution in like kind equal to the Formula Number then in effect times such dividend or distribution on each share of the Common Stock. As used herein, the "Formula Number" shall be 1,000; PROVIDED, HOWEVER, that, if at any time after December 31, 1996, the Corporation shall (i) Holders of declare or pay any dividend on the Common Stock payable in shares of Preferred Common Stock shall be entitled to participate equally and ratably with or make any distribution on the holders Common Stock in shares of Common Stock, (ii) subdivide (by a stock split or otherwise) the outstanding shares of Common Stock into a larger number of shares of Common Stock in all dividends paid on or (iii) combine (by a reverse stock split or otherwise) the outstanding shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders a smaller number of shares of Common Stock, and no dividends then in each such event the Formula Number shall be payable adjusted to holders of shares of Common Stock unless a number determined by multiplying the full dividends contemplated Formula Number in effect immediately prior to such event by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i)a fraction, the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board numerator of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date which is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment outstanding immediately after such event and the denominator of which is the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders number of shares of Preferred Common Stock entitled thereto. Each Participating Dividend that are outstanding immediately prior to such event (and rounding the result to the nearest whole number); and PROVIDED FURTHER, that, if at any time after December 31, 1996, the Corporation shall issue any shares of its capital stock in a merger, reclassification, or Annual Dividend change of the outstanding shares of Common Stock, then in each such event the Formula Number shall be payable appropriately adjusted to the Holders reflect such merger, reclassification or change so that each share of Preferred Stock continues to be the economic equivalent of a Formula Number of shares of Common Stock prior to such merger, reclassification or change.
b. The Corporation shall declare a dividend or distribution on this Series as they appear provided in Section 2(a) immediately prior to or at the same time it declares a dividend or distribution on the Register at Common Stock (other than a dividend or distribution solely in shares of Common Stock); PROVIDED, HOWEVER, that, in the Close event no dividend or distribution (other than a dividend or distribution in shares of Business Common Stock) shall have been declared on the record date designated by Common Stock during the period between any Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend Payment Date, a dividend of $0.01 per share on this Series shall nevertheless be payable on such subsequent Quarterly Dividend Payment Date. The Board of Directors may fix a record date for such dividendsthe determination of holders of shares of this Series entitled to receive a dividend or distribution declared thereon, which (i) with respect to Participating Dividends, record date shall be the same day as the record date for any corresponding dividend or distribution on the payment Common Stock.
c. Dividends shall begin to accrue and be cumulative on outstanding shares of this Series from and after the Quarterly Dividend Payment Date next preceding the date of original issue of such shares of this Series; PROVIDED, HOWEVER, that dividends to on such shares which are originally issued after the record date for the determination of holders of shares of Common Stock (this Series entitled to receive a quarterly dividend and on or prior to the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual next succeeding Quarterly Dividend Payment Date (shall begin to accrue and be cumulative from and after such date, an “Annual Quarterly Dividend Payment Record Date”). Notwithstanding the foregoing, dividends on shares of this Series which are originally issued prior to the record date for the determination of holders of shares of this Series entitled to receive a quarterly dividend on the first Quarterly Dividend Payment Date shall be calculated as if cumulative from and after the last day of the fiscal quarter next preceding the date of original issuance of such shares. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares of this Series in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares at the time outstanding.
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding d. So long as any shares of Preferred Stockthis Series are outstanding, the Corporation no dividends or other distributions shall not (i) declarebe declared, pay paid or distributed, or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchasedistribution, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of on the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, Common Stock unless, in each case, (A) immediately before and after the taking of such action, the fair value dividend required by this Section 2 to be declared on this Series shall have been declared.
e. The holders of the Corporation’s assets would exceed the sum shares of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would Series shall not be able entitled to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date receive any dividends or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except other distributions except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicableherein.
Appears in 1 contract
Dividends. (a) Holders shall be entitled to receive and the Corporation shall pay, cumulative dividends at the rate per share (as a percentage of the issued Stated Value per share) of 8% per annum (subject to increase pursuant to Section 7(a)) payable quarterly on March 1, June 1, September 1 and outstanding December 1, beginning with December 31, 2006, the first such date after the Original Issue Date, and on any Conversion Date or redemption date pursuant to the terms hereunder (except that, if such date is not a Trading Day, the payment date shall be the next succeeding Trading Day)(“Dividend Payment Date”). The form of dividend payments to each Holder shall be made in the following order: (i) if funds are legally available for the payment of dividends and the Equity Conditions have not been met, in cash only, (ii) if funds are legally available for the payment of dividends and the Equity Conditions have been met, 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 20 VWAPs 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, in shares of Common Stock which shall be valued at 90% of the average of the 20 VWAPs immediately prior to the Dividend Payment Date; (iv) if funds are not legally available for the payment of dividends and the Equity Conditions relating to registration have been waived by such Holder, as to such Holder only, in unregistered shares of Common Stock which shall be valued at 90% of the average of the 20 VWAPs 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, then, at the election of such Holder, such dividends shall accrue to the next Dividend Payment Date or shall be accreted to the outstanding Stated Value. 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 5. On the Closing Date the Corporation shall have notified the Holders whether or not it may lawfully pay cash dividends. The Corporation shall promptly notify the Holders at any time the Corporation shall become able or unable, as the case may be, to lawfully 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. Dividends on the Preferred Stock shall be entitled calculated on the basis of a 360-day year, shall accrue daily commencing on the Original Issue Date, and shall be deemed to receiveaccrue from such date whether or not earned or declared and whether or not there are profits, out of the assets 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 on partially in cash and partially in shares, then such payment shall be distributed ratably among the terms described below:
(i) Holders based upon the number of shares of Preferred Stock held by each Holder. Any dividends, whether paid in cash or shares, 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 entitled paid in cash, at the rate of 18% per annum or the lesser rate permitted by applicable law (such fees to participate equally accrue daily, from the Dividend Payment Date through and ratably with including the holders date of shares of Common payment).
(b) So long as any Preferred Stock in all dividends paid on shall remain outstanding, neither the shares of Common Corporation nor any Subsidiary thereof shall redeem, purchase or otherwise acquire directly or indirectly any Junior Securities. So long as any Preferred Stock shall remain outstanding, neither the Corporation nor any Subsidiary thereof shall directly or indirectly pay or declare any dividend or make any distribution (other than a dividend or distribution described in Section 5 or dividends due and paid in the form ordinary course on preferred stock of Common Stockthe Corporation at such times when the Corporation is in compliance with its payment and other obligations hereunder) upon, Convertible nor shall any distribution be made in respect of, any Junior Securities so long as any dividends due on the Preferred Stock remain unpaid, nor shall any monies be set aside for or applied to the purchase or redemption (through a sinking fund or otherwise) of any Junior Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of pari passu with the Preferred Stock.
(iic) In addition to any dividends pursuant to Section 4(a)(i), The Corporation acknowledges and agrees that the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds capital of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% such term is used in Section B of the Liquidation Preference per share General Corporation Law of Preferred Stock (the “Dividend Rate”), payable Florida) in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion respect of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon and any conversion future issuances of the Corporation’s capital stock shall be equal to the aggregate par value of such Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments capital stock, as the case may be, and that, on or after the date of the Purchase Agreement, it shall be aggregated per Holder and shall be made to not increase the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option capital of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference capital stock issued and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business outstanding on such Annual Dividend Payment Record Date will be entitled, notwithstanding date. The Corporation also acknowledges and agrees that it shall not create any special reserves under the related Fundamental Transaction or conversion, as applicable, to receive, on or, at General Corporation Law of Florida without the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share prior written consent of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicableeach Holder.
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Samples: Securities Purchase Agreement (World Health Alternatives Inc)
Dividends. (a) The Holders of the issued and outstanding shares of Series B Preferred Stock shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Series B Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all cash dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record DateDate (as defined below), all shares of Series B Preferred Stock then outstanding were converted into shares of Common StockStock (assuming that all of the then issued and outstanding shares of Series B Preferred Stock could be converted into shares of Common Stock on the record date in respect of such dividend). Dividends or distributions payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends or distributions are payable to holders of shares of Common StockStock (a “Common Stock Dividend Payment Date”), and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Series B Preferred Stock. Other than in respect of dividends paid in cash on the shares of Common Stock as and to the extent provided for in this paragraph (i), Holders of shares of Series B Preferred Stock shall not be entitled to participate in dividends or distributions of any nature paid on or in respect of the Common Stock or to holders thereof.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Series B Preferred Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Series B Preferred Stock (the “Annual Series B Preferred Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per Dividend Rate as further specified below. Series B Preferred Dividends on each share of Series B Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends dividends, shall compound quarterly on each Series B Preferred Dividend Payment Date and shall be payable annually quarterly in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Series B Preferred Dividend Payment Date, commencing on the first Annual Series B Preferred Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, The amount of Series B Preferred Dividends accruing with respect to any share of Series B Preferred Stock for any day shall be determined by dividing (x) the extent unpaid, Implied Quarterly Dividend Amount with respect to such day by (y) the actual number of days in the Payment Period in which such day falls. The amount of Series B Preferred Dividends payable with respect to any share of Series B Preferred Stock for any Payment Period shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion equal the sum of the Series B Preferred Stock following a Fundamental Transaction pursuant Dividends accrued in accordance with the prior sentence of this Section 4(a)(ii) with respect to Section 7(g)(i), or upon any conversion of the such share during such Payment Period. Series B Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 .005 being rounded upward).
(iii) The Annual Subject to and in accordance with the provisions of Section 4(a)(iv), the Series B Preferred Dividends may, at the option of the Corporation in its sole discretionCorporation, be paid (A) in cash, (B) cash or by delivery of issuing fully paid and nonassessable shares of Common Series B Preferred Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if . If the Corporation elects to pay all or pays any part of the total amount of an Annual Series B Preferred Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”)Series B Preferred Stock, the number of shares of Common Series B Preferred Stock to be delivered shall paid in respect of such Series B Preferred Dividend will be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect equal to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares (including fractional shares) that have an aggregate Liquidation Preference equal to the amount of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAPsuch Series B Preferred Dividend.
(iv) Notwithstanding anything to the contrary in this Section 4(a) (including for the avoidance of doubt, the last sentence of Section 4(a)(v)), the Corporation shall not pay any Series B Preferred Dividends accumulating prior to the date following the first date on which there are no longer any outstanding Convertible Notes (as defined in the Investment Agreement) by issuing fully paid and nonassessable shares of Series B Preferred Stock, but must pay such Series B Preferred Dividends on any applicable Series B Preferred Dividend Payment Date, if at all, in cash.
(v) Each Participating Dividend or Annual Series B Preferred Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Series B Preferred Dividend shall be payable to the Holders of Series B Preferred Stock as they appear on the Register at the Close close of Business business on the record date designated by the Board of Directors for such dividendsdividends (each such date, a “Dividend Payment Record Date”), which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”)) and, and (ii) with respect to Annual Series B Preferred Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (Series B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
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Dividends. (a) Holders If the Corporation declares and pays cash dividends on the Common Stock then, in that event, the holders of shares of Series F Preferred Stock shall be entitled to share in such dividends on a pro rata basis, as if their shares had been converted into shares of Common Stock pursuant to Section 7(a) below immediately prior to the record date for determining the stockholders of the issued and outstanding Corporation eligible to receive such dividends.
(b) The holders of shares of Series F Preferred Stock shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for cumulative dividends at an annual rate equal to the applicable Payment Period or Payment Periods excess(if any) of (i)9% of the Accreted value over (ii) any cash dividends on each outstanding share of Preferred Stock (the “Annual Dividends”paid in accordance with Section 3(a) at a rate per annum (above, calculated on the basis of an actual 365- or 366a 360-day year, as applicable) equal to 8.00% consisting of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”)twelve 30-day months, payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends and such dividends shall accrue and accumulate on a daily basis quarterly from the Issuance Date date of such shareissuance thereof, whether or not declared declared. Accrued and whether or not unpaid dividends shall compound on a quarterly basis and be added to the Corporation has funds legally available Accreted Value of each share of Series F Preferred Stock. The Board of Directors may fix a record date for the determination of holders of shares of Series F Preferred Stock entitled to receive payment of such dividends dividends, which record date shall not be more than sixty(60) days prior to the applicable dividend payment date. All accrued and shall be payable annually in arrearsunpaid dividends, ifif any, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividendsshall, to the extent unpaidfunds are legally available therefor, shall in all cases be payable upon mandatorily paid immediately prior to the earlier to occur of (i) a Liquidation pursuant to Section 5Liquidation, upon a (ii) an optional conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion shares of the Series F Preferred Stock pursuant to Section 6(a)(i7(a) or below,(iii) an automatic conversion of shares of Series F Preferred Stock pursuant to Section 6(a)(ii). Annual 7(b) below and (iv) a redemption of shares of Series F Preferred Stock pursuant to Section 5 hereof (the "Mandatory Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upwardPayment Date").
(iiic) The Annual Dividends mayOn the Mandatory Dividend payment Date, all accrued dividends shall be paid,(x) in the case of a Liquidation or a redemption pursuant to Section 5 below, in cash, (y) in the case of an optional conversion or an automatic conversion triggered by a Sale Transaction, in shares of Common Stock or in cash, at the option of the Corporation in its sole discretion, holders of a majority of the shares of the series F Preferred Stock. If dividends are to be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect pursuant to any Annual Dividend Payment Datethe preceding sentence, the “Dividend PIK Amount”value of such shares shall be determined, (A) in the case of a Sale Transaction (other than as set forth in clause (B), below), by the number of Net Per Share Price paid for shares of Common Stock to be delivered shall be determined by dividing on such Sale Transaction or (B) in the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined case of a Sale Transaction in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date which no Net Per Share Price is less than the Floor Price, (A) the number of paid for shares of Common Stock that are permitted to be delivered or in partial payment the case of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders an optional conversion of shares of Series F Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated Stock, in good faith by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”)Directors.
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
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Dividends. (a) Holders The holders of the issued and outstanding shares of Series B Preferred Stock shall be entitled to receivereceive preferential dividends in cash, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, after dividends shall have been paid or declared and set apart for payment on each Annual Dividend Payment Date for shares of the applicable Payment Period or Payment Periods dividends on each outstanding share of Corporation's Series A 7.5% Cumulative Convertible Redeemable Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated "Series A Preferred Stock"), but before any dividend or other distribution will be paid or declared and set apart for payment on any shares of any Common Stock or other class of stock junior to the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Series B Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iiiCommon Stock and such junior stock being hereinafter collectively the "Junior Stock") below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from at the Issuance Date rate of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing 12% per annum on the first Annual Dividend Payment Date following Stated Value payable quarterly on the Issuance Date last day of such share. Accrued Dividendseach calendar quarter; provided, however, that in the event that dividend payments are not made when due in cash, to the extent unpaidpermitted by applicable law, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend dividend payments shall be aggregated per Holder and shall be made to made, in the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividendsof the Corporation, which (i) with respect to Participating Dividends, shall be in additional fully paid and nonassessable shares of the same day as the record date for the payment Corporation's Common Stock at a rate of dividends to the holders of shares one share of Common Stock (for each $2.00 of such dividend not paid in cash and the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, issuance of such additional shares shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (constitute full payment of such date, an “Annual Dividend Payment Record Date”)dividend.
(b) Without The dividends on the consent Series B Preferred Stock at the rates provided above shall be cumulative whether or not earned, so that if at any time full cumulative dividends at the rate aforesaid on all shares of the Holders representing at least a majority Series B Preferred Stock then outstanding from the date from and after which dividends thereon are cumulative to the end of the then-issued quarterly dividend period next preceding such time shall not have been paid or declared and set apart for payment, or if the full dividend on all such outstanding Series B Preferred Stock for the then current dividend period shall not have been paid or declared and set apart for payment, the amount of the deficiency shall be paid or declared and set apart for payment (but without interest thereon) before any sum shall be set apart for or applied by the Corporation or a subsidiary of the Corporation to the purchase, redemption or other acquisition of the Series B Preferred Stock or any shares of any other class of stock ranking on a parity with the Series B Preferred Stock ("Parity Stock, the Corporation ") and before any dividend or other distribution shall not (i) declare, pay be paid or declared and set apart for payment on any Junior Stock and before any sum shall be set aside for payment any dividends or distributions upon any Junior Securities applied to the purchase, redemption or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares acquisition of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If Dividends on all shares of the Fundamental Transaction Date or Conversion Date of any share of Series B Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior shall begin to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will accrue and be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate cumulative from and after the Fundamental Transaction Date or Conversion Date, as applicabledate of issuance thereof at the rate then provided. A dividend period shall be deemed to commence on the day following a quarterly dividend payment date herein specified and to end of the next succeeding quarterly dividend payment date herein specified.
Appears in 1 contract
Dividends. (a) Holders A Holder shall be entitled to receive any dividend declared and paid to holders of shares of Common Stock (excluding dividends or distributions referred to in Section 7) as if such Holder’s shares of Series A Preferred Stock had been converted into Class A Common Stock pursuant to the calculation set forth in the first sentence of Section 6(a) (without taking into account the limitations on conversion set forth in clauses (i) and (ii) of the proviso thereof) upon the record date of such dividend.
(b) In addition to any dividends paid pursuant to Section 4(a), from and after the Original Issue Date, each Holder, in preference and priority to the holders of all Junior Stock and parity with all other holders of Parity Stock, whether issued and outstanding shares of Preferred Stock before, on or after the date hereof, shall be entitled to receive, out of the assets of the Corporation legally available for therefor and as declared by the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities Board or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stockan authorized committee thereof, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period whole share (or Payment Periods dividends on each outstanding share proportion thereof with respect to fractional shares) of Series A Preferred Stock at the Dividend Rate (the “Annual Dividends”) at a rate per annum (to be calculated on the basis of an actual 365- or 366-day yeardays elapsed over a year of 365 days), as applicablemultiplied by the sum of (i) equal to 8.00% the Stated Value and (ii) all accumulated and unpaid dividends accrued thereon from the date of the Liquidation Preference per share of Preferred Stock issuance thereof (the “Dividend RateSeries A Preferred Dividends”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual The Series A Preferred Dividends shall be cumulative, shall accrue and accumulate on a daily basis from the Issuance Date of such sharein arrears, whether or not declared and whether or not there are any assets of the Corporation has funds legally available for therefor, on a quarter by quarter basis from the payment Original Issue Date, and shall, if declared, be payable from the Preferred Dividend Start Date in kind in the form of Series A Preferred Stock quarterly in arrears on the last day of March, June, September and December in each year until such dividends time as the Corporation pays all such amounts in full. To the extent not prohibited by law, the Corporation agrees that it shall, and shall be payable annually in arrears, if, as and when so authorized and declared by cause the Board of Directorsto, on declare the Series A Preferred Dividends with respect to each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date quarter no later than fifteen (15) days following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion last day of the Preferred Stock following a Fundamental Transaction pursuant applicable quarter.
(c) From and after the time, if any, that the Corporation shall have failed to (i) pay any dividend contemplated by Section 7(g)(i4(b), or upon (ii) redeem any conversion shares of the Series A Preferred Stock pursuant to Section 6(a)(i) 5.3 of the Purchase Agreement or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends mayredeem any shares of Series A Preferred Stock pursuant to Section 12 of this Certificate of Designation, at the option no dividends shall be declared or paid or set apart for payment, or other distribution declared or made or set apart, upon any other securities of the Corporation in or its sole discretionSubsidiaries (other than to wholly-owned Subsidiaries of the Corporation), nor shall any other securities of the Corporation or its Subsidiaries be paid redeemed, purchased or otherwise acquired (Aother than a redemption, purchase or other acquisition of shares of Common Stock made for purposes of any employee or director incentive or benefit plans or arrangements of the Corporation) in cashfor any consideration by the Corporation, directly or indirectly (B) by delivery except for conversion into or payment of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 1 contract
Samples: Securities Purchase Agreement (Gulfmark Offshore Inc)
Dividends. (a) Holders From and after the date of the issued and outstanding issuance of any shares of Series A Preferred Stock, dividends at the rate per annum of eight percent (8%) of the Series A Original Purchase Price (as defined below) per share plus the amount of previously accrued dividends shall accrue on such shares of Series A Preferred Stock shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Series A Accruing Dividends”). From and after the date of the issuance of any shares of Series A-2 Preferred Stock, dividends at the rate per annum of eight percent (8%) of the Series A-2 Original Purchase Price (as defined below) per share plus the amount of previously accrued dividends shall accrue on such shares of Series A-2 Preferred Stock (the “Series A-2 Accruing Dividends” and, together with the Series A Accruing Dividends, the “Accruing Dividends”). Accruing Dividends shall accrue from day to day, whether or not declared, and shall be cumulative; provided however, that except as set forth in the following sentence of this Section 1 or in Subsection 2.1 and Section 6, such Accruing Dividends shall be payable on the same date that such dividends are payable to holders of shares of Common Stockonly when, as, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when if declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue Directors and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall be under no obligation to pay such Accruing Dividends. The Corporation shall not (i) declare, pay or set aside for payment any dividends on shares of any other class or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities series of capital stock of the Corporation (other than repurchases, redemptions or acquisitions of dividends on shares of Junior Securities with respect Common Stock payable in shares of Common Stock) unless (in addition to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption obtaining of any shares of such Junior Securities, unless, consents required elsewhere in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.the
Appears in 1 contract
Dividends. (a) Holders From and after the date of the issued and outstanding shares issuance of each share of Series A Preferred Stock shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividendsStock, dividends on at the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) Applicable Rate per annum per share (the “Participating DividendsSeries A Dividend Rate”) shall accrue on such share of Series A Preferred Stock (the “Accruing Dividends”). For purposes hereof, the “Applicable Rate” means 5.0% of the Series A Original Issue Price (or such higher rate as provided in Section 8(a)). The Accruing Dividends shall be payable subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series A Preferred Stock. Accruing Dividends shall accrue from day to day, whether or not declared, on each share of Series A Preferred Stock from the same date of issuance thereof by the Corporation; provided, however, that except as set forth in the following sentence of this Section 2, such dividends are payable to holders of shares of Common Stock, and no dividends Accruing Dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i)only when, the Corporation shall payas, subject to Section 4(c), if, as and when if declared by the Board of DirectorsDirectors or as otherwise specifically provided herein. The Corporation shall not declare, out pay or set aside any dividends on shares of funds any other class or series of Capital Stock of the Corporation legally available therefor(other than dividends on shares of Common Stock payable in shares of Common Stock) unless (in addition to the obtaining of any consents required elsewhere in the Certificate of Incorporation) the Holders of the Series A Preferred Stock then outstanding shall first receive, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends simultaneously receive, a dividend on each outstanding share of Series A Preferred Stock (the “Annual Dividends”) in an amount at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) least equal to 8.00% the greater of (i) the amount of the Liquidation Preference per aggregate Accruing Dividends then accrued on such share of Series A Preferred Stock and not previously paid and (the “Dividend Rate”), payable in accordance with Section 4(a)(iiiii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery the case of shares of a dividend on Common Stock or any class or series that is convertible into Common Stock, that dividend per share of Series A Preferred Stock as would equal the product of (1) the dividend payable on each share of such class or (C) by delivery of any combination of cash and series determined, if applicable, as if all shares of Common Stock; provided that, if the Corporation elects to pay all such class or any part of the total amount of an Annual Dividend in shares of series had been converted into Common Stock and (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A2) the number of shares of Common Stock that are permitted to be delivered issuable upon conversion of a share of Series A Preferred Stock, in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be each case calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated for determination of holders entitled to receive such dividend or (B) in the case of a dividend on any class or series that is not convertible into Common Stock, at a rate per share of Series A Preferred Stock determined by (1) dividing the amount of the dividend payable on each share of such class or series of capital stock by the Board original issuance price of Directors for such dividendsclass or series of capital stock (subject to appropriate adjustment in the event of any stock dividend, which (i) stock split, combination or other similar recapitalization with respect to Participating Dividendssuch class or series) and (2) multiplying such fraction by an amount equal to the Series A Original Issue Price; provided that if the Corporation declares, shall be pays or sets aside, on the same day as date, a dividend on shares of more than one class or series of capital stock of the record date for Corporation, the payment of dividends dividend payable to the holders of shares of Common Series A Preferred Stock (the “Common Stock Dividend Record Date”), and (ii) with respect pursuant to Annual Dividends, this Section 2 shall be not more than thirty (30) days nor less than ten (10) days preceding calculated based upon the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without dividend on the consent class or series of capital stock that would result in the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of highest Series A Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicabledividend.
Appears in 1 contract
Samples: Subscription Agreement (Bellevue Life Sciences Acquisition Corp.)
Dividends. (a) Holders If the Corporation declares and pays cash dividends on the Common Stock then, in that event, the holders of shares of Series F Preferred Stock shall be entitled to share in such dividends on a pro rata basis, as if their shares had been converted into shares of Common Stock pursuant to Section 7(a) below immediately prior to the record date for determining the stockholders of the issued and outstanding Corporation eligible to receive such dividends.
(b) The holders of shares of Series F Preferred Stock shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for cumulative dividends at an annual rate equal to the applicable Payment Period or Payment Periods excess (if any) of (i) 9% of the Accreted Value over (ii) any cash dividends on each outstanding share of Preferred Stock (the “Annual Dividends”paid in accordance with Section 3(a) at a rate per annum (above, calculated on the basis of an actual 365- or 366a 360-day year, as applicable) equal to 8.00% consisting of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”)twelve 30-day months, payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends and such dividends shall accrue and accumulate on a daily basis quarterly from the Issuance Date date of such shareissuance thereof, whether or not declared declared. Accrued and whether or not unpaid dividends shall compound on a quarterly basis and be added to the Corporation has funds legally available Accreted Value of each share of Series F Preferred Stock. The Board of Directors may fix a record date for the determination of holders of shares of Series F Preferred Stock entitled to receive payment of such dividends dividends, which record date shall not be more than sixty (60) days prior to the applicable dividend payment date. All accrued and shall be payable annually in arrearsunpaid dividends, ifif any, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividendsshall, to the extent unpaidfunds are legally available therefor, shall in all cases be payable upon mandatorily paid immediately prior to the earlier to occur of (i) a Liquidation pursuant to Section 5Liquidation, upon a (ii) an optional conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion shares of the Series F Preferred Stock pursuant to Section 6(a)(i7(a) or below, (iii) an automatic conversion of shares of Series F Preferred Stock pursuant to Section 6(a)(ii). Annual 7(b) below and (iv) a redemption of shares of Series F Preferred Stock pursuant to Section 5 hereof (the "Mandatory Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upwardPayment Date").
(iiic) The Annual Dividends mayOn the Mandatory Dividend Payment Date, all accrued dividends shall be paid, (x) in the case of a Liquidation or a redemption pursuant to Section 5 below, in cash, (y) in the case of an optional conversion or an automatic conversion triggered by a Sale Transaction, in shares of Common Stock or in cash, at the option of the Corporation in its sole discretion, holders of a majority of the shares of the Series F Preferred Stock. If dividends are to be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect pursuant to any Annual Dividend Payment Datethe preceding sentence, the “Dividend PIK Amount”value of such shares shall be determined, (A) in the case of a Sale Transaction (other than as set forth in clause (B), below), by the number of Net Per Share Price paid for shares of Common Stock to be delivered shall be determined by dividing on such Sale Transaction or (B) in the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined case of a Sale Transaction in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date which no Net Per Share Price is less than the Floor Price, (A) the number of paid for shares of Common Stock that are permitted to be delivered or in partial payment the case of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders an optional conversion of shares of Series F Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated Stock, in good faith by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”)Directors.
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 1 contract
Dividends. (a) Holders of Except to the issued and outstanding shares of Preferred Stock shall be entitled to receive, out of the assets of the Corporation legally available extent required in order for the payment REIT to maintain its status as an entity taxed as a real estate investment trust in accordance with the written advice of dividendscounsel, dividends on the terms described below:
REIT will not, and will not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to the REIT or any of its Subsidiaries, except that (i) Holders any Subsidiary of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Borrower may pay cash Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders Borrower or to a wholly-owned Subsidiary of the Preferred Stock.
Borrower, (ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds non-wholly-owned Subsidiary of the Corporation legally available thereforBorrower may pay cash Dividends to its shareholders, on each Annual Dividend Payment Date for the applicable Payment Period partners or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when other equity holders generally so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated long as (x) the total Dividend PIK Amount less Borrower or its respective Subsidiary which owns the equity interest or interests in the Subsidiary paying such Dividends receives at least its proportionate share thereof (y)(i) based upon its relative holdings of equity interests in the product Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the Actual Dividend PIK Payment Shares multiplied various classes of equity interests in such Subsidiary) and (y) no Dividends may be paid by any non wholly-owned Subsidiary of the Borrower (iiother than ET Capital Corp.) at any time that any intercompany loans are outstanding to such Subsidiary, and (iii) so long as no Default or Event of Default then exists or would result therefrom, the 10-Day VWAP.
Borrower may pay cash Dividends to the REIT, which in turn may pay cash Dividends to its shareholders to the extent of any Dividends received by the REIT from the Borrower, provided that the aggregate amount of cash Dividends paid by the REIT pursuant to this clause (iviii) Each Participating Dividend or Annual Dividend in any fiscal quarter of the REIT shall not exceed 90% of the REIT's estimated funds from operations for such fiscal quarter, and provided further that no Dividends shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which REIT pursuant to this clause (iiii) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent in any fiscal quarter of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or REIT prior to the next Annual Dividend Payment Date, then release by the Holder REIT of such share at its quarterly earnings report for the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicablepreceding quarter.
Appears in 1 contract
Samples: Credit Agreement (Eldertrust)
Dividends. (a) Holders 1. The holders of the issued and outstanding shares of Series C Preferred Stock Shares shall be entitled to receive, out of the assets of the Corporation legally available for the payment of receive dividends, dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of DirectorsTrustees, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment purpose, at the rate of eight percent (8%) per annum of the Liquidation Preference, payable in quarterly installments on the last day of January, April, July and October of each year (each such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual date being a "Dividend Payment Date, commencing on ") with respect to the immediately preceding calendar quarter. The first Annual Dividend Payment Date shall be __________, 1997. If any Dividend Payment Date shall fall on a Saturday, Sunday or legal holiday, then such dividend shall be paid on the next business day following such Dividend Payment Date.
2. Each dividend shall be fully cumulative and shall accrue (whether or not declared), on a daily basis without compounding and without interest, from __________, 1996.
3. Dividends on the Issuance Series C Preferred Shares shall be paid in cash at the close of business on each Dividend Payment Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion holders of record on the last day of the immediately preceding month (i.e., the last day of March, June, September and December of each year). All dividends on the Series C Preferred Stock following a Fundamental Transaction pursuant Shares shall be paid to Section 7(g)(i), or upon any conversion each holder entitled thereto pro rata based on the number of Series C Preferred Shares held by such holder.
4. The holders of shares of the Series C Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments Shares shall be aggregated per Holder and shall be made entitled to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation receive dividends provided for in its sole discretion, be paid this Paragraph (A) in cash, (B) by delivery preference to and with priority over any dividends on and other distributions in respect of the Common Shares of Beneficial Interest of the Company or any other class or series of shares or equity securities of Common Stockthe Company heretofore or hereafter authorized which by its terms ranks junior to the Series C Preferred Shares in respect of dividend rights and rights of liquidation, or dissolution and winding up of the affairs of the Company (C) by delivery of the "Junior Securities"). So long as any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment DateSeries C Preferred Shares are outstanding, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation Company shall not (i) declare, pay or set aside apart for payment any dividends dividend on account of, or distributions upon set apart for payment money for a sinking or other similar fund for the purchase, redemption or other retirement of any Junior Securities or any warrants, rights, calls or options exercisable for or convertible into any Junior Security, or make any distribution in respect thereof, either directly or indirectly, and whether in cash, obligations or shares of the Company or other property (other than distributions or dividends in Junior Securities to the holders of Junior Securities), unless full dividends on all outstanding shares of the Series C Preferred Shares shall have been paid in full or a sum set apart sufficient for the full payment thereof.
5. Upon issuance, the Series C Preferred Shares will rank on a parity as to distributions with (i) the Series A Increasing Rate Cumulative Convertible Preferred Shares of Beneficial Interest of the Company (the "Series A Preferred Shares") and (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions the Series B Cumulative Convertible Preferred Shares of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment Beneficial Interest of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of Company (the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the "Series B Preferred StockShares"), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 1 contract
Dividends. (a) The Holders of the issued and outstanding shares of Series A Preferred Stock shall be entitled to receive, receive preferential dividends in cash out of the assets any funds of the Corporation legally available Parent before any dividend or other distribution will be paid or declared and set apart for the payment of dividends, dividends on the terms described below:
(i) Holders of any shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of any Common Stock, Convertible Securities or Optionsother class of stock presently authorized or to be authorized (the Common Stock, and such other stock being hereinafter collectively the "Junior Stock") as if immediately prior at the "base rate" or the "prime rate" published in the Wall Street Journal from time to each Common Stock Dividend Record Date, all shares time (the "Prime Rate") plus one and a half percent (0.5%) simple interest per annum on the Stated Value per share of Series A Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable (as adjusted pursuant to this Section 4(a)(i4 below) (the “Participating Dividends”) "Monthly Dividend Amount"). The Parent shall be payable make such payments of the Monthly Dividend Amount commencing July 1, 2003 and on the same date that such dividends are payable to holders first business day of each consecutive calendar month thereafter. Dividend payments may be made in cash at the rate of 102% Monthly Dividend Amount, or in fully paid and non assessable registered shares of the Parent's Common StockStock at the Conversion Price (as defined herein) then in effect, and no dividends shall be payable to holders of shares of Common Stock unless as long as the full dividends contemplated by this Section 4(a)(i) are paid at Conversion Price is below the same time to Market Price the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date issuance of such share, whether or not declared and whether or not the Corporation has funds legally available for the shares shall constitute full payment of such dividends and dividend. The Prime Rate shall be payable annually in arrears, ifincreased or decreased, as and when so authorized and declared by the Board of Directorscase may be, on as such Prime Rate shall fluctuate; each Annual Dividend Payment Date, commencing change to be effective on the first Annual Dividend Payment Date following the Issuance Date date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”)fluctuation.
(b) Without The dividends on the consent Series A Preferred Stock at the rates provided above shall be cumulative whether or not earned so that, if at any time full cumulative dividends at the rate aforesaid on all shares of the Holders representing at least a majority Series A Preferred Stock then outstanding from the date from and after which dividends thereon are cumulative to the end of the then-issued monthly dividend period next preceding such time shall not have been paid or declared and set apart for payment, or if the full dividend on all such outstanding shares Series A Preferred Stock for the then current dividend period shall not have been paid or declared and set apart for payment, the amount of Preferred Stockthe deficiency shall be paid or declared and set apart for payment (but without interest thereon) before any sum shall be set apart for or applied by the Parent, the Corporation or a subsidiary of the Corporation to the purchase, redemption or other acquisition of the Series A Preferred Stock or Parri Passu Securities and before any dividend or other distribution shall not (i) declare, pay be paid or declared and set apart for payment on any Junior Stock and before any sum shall be set aside for payment any dividends or distributions upon any Junior Securities applied to the purchase, redemption or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares acquisition of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If Dividends on all shares of the Fundamental Transaction Date or Conversion Date of any share of Series A Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior shall begin to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will accrue and be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate cumulative from and after the Fundamental Transaction Date or Conversion Date, as applicabledate of issuance thereof. A dividend period shall be deemed to commence on the day following a monthly dividend payment date herein specified and to end on the next succeeding monthly dividend payment date herein specified.
Appears in 1 contract
Samples: Securities Purchase Agreement (Cycle Country Accessories Corp)
Dividends. (a) Holders Upon the grant of Common Shares pursuant to Section 2(b)(ii), the issued and outstanding shares of Preferred Stock Grantee shall be entitled to receive, out for each Common Share granted, an amount equal to the per share amount of all dividends declared with respect to Common Shares with a record date on or after the Effective Date to and including the date of the assets Termination of Employment of the Corporation legally available for Grantee. After the payment date of dividendsgrant of the Common Shares pursuant to Section 2(b)(ii), dividends on the terms described below:
(i) Holders holder of shares of Preferred Stock such Common Shares shall be entitled to participate equally and ratably with receive dividends in the same manner as dividends are paid to all other holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without Upon the consent grant of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred StockCommon Shares pursuant to Section 2(b)(iii), the Corporation Grantee shall not (i) declarebe entitled to receive, pay or set aside for payment any each Common Share granted, an amount equal to the per share amount of all dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities declared with respect to equity awards (Common Shares with a record date on or after the Effective Date to and including in connection with “cashless” or “net” exercises of Options, payment the date of the exercise or purchase price Change in Control. After the date of Options, or to satisfy tax withholding obligations due as a result grant of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of Common Shares pursuant to Section 2(b)(iii), the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares holder of such Junior Securities, unless, Common Shares shall be entitled to receive dividends in each case, (A) immediately before and after the taking same manner as dividends are paid to all other holders of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable lawCommon Shares.
(c) If Upon grant of the Fundamental Transaction Restricted Shares pursuant to Section 3(a), the Grantee shall be entitled to receive, for each of the Restricted Shares (whether vested or unvested), an amount in cash equal to the per share amount of all dividends 5 declared with respect to the Common Shares with a record date on or after the Effective Date or Conversion and before the Share Issuance Date of any share of Preferred Stock is after (other than those with respect to which an Annual Dividend Payment Record Date for a declared Annual Dividend adjustment was made pursuant to Section 6); provided that, notwithstanding the foregoing, if on the Preferred Stock but occurs on or prior Valuation Date the Total Return to Shareholders exceeds the next Annual Dividend Payment DateMaximum Total Return to Shareholders, then the Holder amount the Grantee shall be entitled to receive pursuant to this Section 4(c) shall equal the product of such (a) the per share at amount of all dividends declared with respect to the Close Common Shares with a record date on or after the Effective Date and before Share Issuance Date (other than those with respect to which an adjustment was made pursuant to Section 6) and (b) the number of Business Restricted Shares the Grantee would have received had the Total Return to Shareholders equaled the Maximum Total Return to Shareholders on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at Valuation Date. After the Corporation’s election, before such Annual Dividend Payment Share Issuance Date, the holder of Restricted Shares (whether vested or unvested) shall be entitled to receive the per share amount of any dividends declared with respect to Common Shares for each Restricted Share (whether vested or unvested) held on the record date of each such declared Annual Dividend on dividend and each such share. dividend shall be paid in the same manner as dividends are paid to the holders of Common Shares.
(d) Except as provided in this Section 4(c)4, Annual Dividends on the Grantee shall not be entitled to receive any share payments in lieu of Preferred Stock will cease or in connection with dividends with respect to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicableany Notional Units and/or Restricted Shares.
Appears in 1 contract
Samples: Notional Unit Award Agreement (Tanger Properties LTD Partnership /Nc/)
Dividends. (a) Holders The holders of any series of the issued and outstanding shares of Class B Voting Preferred Stock shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), ifwhen, as and when if declared by the Board of Directors, out of funds preferential dividends at such rates and payable on such dividend payment dates in each year as shall be established for such series, such dividends to be payable to holders of the Corporation legally available thereforClass B Voting Preferred Stock of record on such dates as may be fixed by said Board, but not more than 70 days before each dividend payment date; provided, however, that dividends shall not be declared or paid on any Class B Voting Preferred Stock for any dividend period unless dividends have been or are contemporaneously declared or paid to the same pro rata extent on the outstanding preferred stock of all series of all classes ranking on a parity with the Class B Voting Preferred Stock as to payment of dividends for all dividend periods terminating on the same or an earlier date. Dividends on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of any series of the Class B Voting Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis be cumulative, if so provided for in such series, from the Issuance Date date of issue thereof or from such shareother date as may be provided for in such series. Whenever dividends payable on the Class B Voting Preferred Stock as provided herein are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directorsdeclared, on each Annual Dividend Payment Dateshares of Class B Voting Preferred Stock outstanding shall have been paid in full, commencing the Company shall not:
(a) declare or pay dividends, or make any other distributions, on the first Annual Dividend Payment Date following the Issuance Date any shares of such share. Accrued Dividendsstock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Class B Voting Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).;
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, declare or pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Optionsdividends, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under make any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of other distributions, on any shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Class B Voting Preferred Stock except dividends paid ratably on the Class B Voting Preferred Stock and all such Junior Securities, unless, parity stock on which dividends are payable or in each case, (A) immediately before and after arrears in proportion to the taking total amounts to which the holders of all such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they shares are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.then entitled; or
(c) If the Fundamental Transaction Date redeem or Conversion Date purchase or otherwise acquire for consideration shares of any share of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Class B Voting Preferred Stock is after an Annual Dividend Payment Record Date provided that the Company may at any time redeem, purchase or otherwise acquire shares of any such junior stock in exchange for a declared Annual Dividend on shares of any stock of the Preferred Stock but occurs on Company ranking junior (either as to dividends or prior upon dissolution, liquidation or winding up) to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Class B Voting Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicableStock.
Appears in 1 contract
Samples: Rights Agreement (Aetna Inc)
Dividends. (a) Holders From and after the date of this Agreement until the earlier of the issued Effective Time and outstanding shares termination of Preferred Stock this Agreement in accordance with Article 7, none of IPG or Omnicom shall be entitled make, declare or set aside any dividend or other distribution to receiveits stockholders without the prior written consent of Omnicom (in the case of IPG) or IPG (in the case of Omnicom); provided, out however, that the written consent of the assets of the Corporation legally available other party shall not be required for the payment of dividends, dividends on the terms described below:
(i) Holders in the case of shares IPG, subject to the terms of Preferred Stock shall be entitled to participate equally this Section 5.17, the authorization and ratably with the holders payment of shares of regular quarterly dividends on IPG Common Stock at a rate not in all dividends paid excess of $0.33 per share, per calendar quarter in accordance with past practice and made solely out of IPG’s cash on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately hand prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, Effective Time and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), in the Corporation shall paycase of Omnicom, subject to the terms of this Section 4(c)5.17, if, as the authorization and when declared by the Board payment of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods regular quarterly dividends on each outstanding share shares of Preferred Omnicom Common Stock (the “Annual Dividends”) at a rate not in excess of $0.70 per annum (calculated on the basis of an actual 365- or 366-day yearshare, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable calendar quarter in accordance with Section 4(a)(iiipast practice and made solely out of Omnicom’s cash on hand prior to the Effective Time (any dividend permitted under the preceding clauses (i) below. Subject to Section 4(cand (ii), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share“Permitted Dividend”); provided, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrearsfurther, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid that (A) in cash, (B) any Permitted Dividend authorized by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered a party shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect deemed to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata relate to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, calendar quarter in which (i) with respect to Participating Dividends, shall be the same day as the record date for such Permitted Dividend occurs, even if the payment of dividends date for such Permitted Dividend occurs in a subsequent calendar quarter; (B) it is agreed that the parties shall take such actions as are necessary to ensure that if either the holders of shares of IPG Common Stock (or the “holders of Omnicom Common Stock Dividend Record are entitled to receive a dividend for a particular calendar quarter prior to the Closing Date”), then the holders of Omnicom Common Stock and (ii) with respect to Annual Dividendsthe holders of IPG Common Stock, respectively, shall be not more than thirty (30) days nor less than ten (10) days preceding also receive a dividend for such calendar quarter, as necessary to result in the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent holders of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference IPG Common Stock and the aggregate Accrued Dividends holders of Omnicom Common Stock receiving dividends covering the Preferred Stock), (B) immediately after same periods prior to the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due Closing Date; and (C) the parties will cooperate such action is otherwise that, and Omnicom will ensure that, any Permitted Dividend authorized by Omnicom having a record date in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date calendar quarter in which the Closing occurs will have the same record date as IPG’s Permitted Dividend for such calendar quarter in order to ensure that the stockholders of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on IPG and Omnicom are entitled to receive the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder same number of such share at dividends between the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding date hereof and the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicableEffective Time.
Appears in 1 contract
Dividends. (a) Holders of the issued and outstanding shares of Series F Preferred Stock shall will be entitled to receive, when, as and if declared by the Board of Directors, out of funds legally available therefor, dividends on each share of the assets Series F Preferred Stock, calculated and payable quarterly (each such quarterly period being hereinafter called a "Dividend Period"), at a rate per annum equal to 6.5% of the Liquidation Preference of such share; provided, however, that without first obtaining stockholder approval pursuant to the rules of the Nasdaq Stock Market, or, in lieu thereof, if allowed by the Nasdaq Stock Market, otherwise delivering notice to stockholders, the aggregate number of shares of Common Stock that are issued as dividends pursuant to this Section (3) at a price below the Initial Market Price shall not exceed 20% of the number of shares of Common Stock that are issued and outstanding as of the Issue Date (the "Base Shares"). If the aggregate number of shares of Common Stock that have been issued as dividends on the Series F Preferred Stock pursuant to this Section (3) at a price below the Initial Market Price exceeds at any time 5% of the Base Shares, the Corporation agrees, for the benefit of the holders of the Series F Preferred Stock, to seek (if not previously obtained) approval at the next annual meeting of the Corporation's stockholders of the issuance of any future dividends payable in Common Stock pursuant to this paragraph (a) of this Section (3) which may exceed 20% of the Base Shares. All dividends on shares of the Series F Preferred Stock, to the extent accrued, shall be cumulative, whether or not earned or declared, on a daily basis from the last date through which dividends have been paid or, if no dividends have been paid, from the date upon which each such share of Series F Preferred Stock was initially issued, and shall be payable quarterly in arrears on March 15, June 15, September 15 and December 15 of each year (each a "Dividend Payment Date"), commencing on September 15, 1998, to holders of record on the Business Day immediately preceding the relevant Dividend Payment Date. Such dividends shall accrue whether or not they have been declared and whether or not there are net profits, surplus or other funds of the Corporation legally available for the payment of dividends, dividends . Dividends on the terms described below:
(i) Holders of shares of Series F Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends maybe, at the option of the Corporation in its sole discretionCorporation, be paid payable (Ai) in cash, cash or (Bii) by delivery through the issuance of a number of fully paid and nonassessable shares (rounded up or down to the nearest whole number) of Common Stock, or (C) Stock equal to the amount of the dividend owed divided by delivery the Dividend Value of any combination of cash and shares of the Common Stock; provided thatprovided, if however, that the Corporation elects shall not pay any dividends on the Series F Preferred Stock in cash prior to pay the date that all or any part obligations under each of the total amount Specified Indentures shall have been satisfied in full unless all restrictions set forth in the Specified Indentures with respect to the payment of an Annual such cash dividends have been waived or otherwise satisfied in accordance with the terms of such Specified Indentures; and provided further, however, that dividends with respect to a Dividend Payment Date that are not paid in cash within 90 days of such Dividend Payment Date shall thereafter be payable solely in shares of Common Stock on the basis of the Dividend Value with respect to such Dividend Payment Date, as set forth in this Section (3), and shall no longer be payable in cash. The "Dividend Value" of the Common Stock with respect to a Dividend Payment Date means the product of (x) 95% and (y) the average of the last sales price for the Common Stock as reported by the Nasdaq Stock Market, or the principal securities exchange or other securities market on which the Common Stock is then being traded, for the five Trading Days immediately preceding such amount Dividend Payment Date.
(b) All dividends paid with respect to shares of the Series F Preferred Stock pursuant to paragraph (a) of this Section (3) shall be paid pro rata to the holders entitled thereto.
(c) No dividend whatsoever shall be declared or paid upon, or any funds or shares of Common Stock set apart for the payment of dividends upon, any outstanding share of the Series F Preferred Stock with respect to any Annual Dividend Payment DatePeriod unless all dividends for all preceding Dividend Periods have been declared and paid (or declared and a sufficient sum or number of shares of Common Stock set apart for the payment of such dividend) upon all outstanding shares of Series F Preferred Stock. No dividend will be declared or paid upon any stock that ranks on a parity with the Series F Preferred Stock with respect to dividends (the "Dividend Parity Stock"), and no shares of Dividend Parity Stock shall be redeemed, purchased or otherwise acquired by the Corporation for consideration through a sinking fund or otherwise, unless (A) all accrued and unpaid dividends have been paid on the Series F Preferred Stock for all prior Dividend Periods and (B) sufficient funds or shares of Common Stock have been paid or set apart for the payment of the dividend for the Dividend Period for which a dividend is next payable on the Series F Preferred Stock. Notwithstanding the provisions of this paragraph (c), if accrued dividends on the Series F Preferred Stock for all prior Dividend Periods have not been paid in full and sufficient funds or shares of Common Stock have not been paid or set apart for the payment of the dividend for the Dividend Period for which a dividend is next payable on the Series F Preferred Stock, the “Corporation may declare a dividend on the Series F Preferred Stock and any Dividend PIK Parity Stock for any Dividend Period if such dividend will be declared ratably in proportion to accrued and unpaid dividends on the Series F Preferred Stock and such Dividend Parity Stock.
(d) The Corporation will not (i) declare, pay or set apart funds or shares of Common Stock for the payment of any dividend or other distribution with respect to any stock that ranks junior to the Series F Preferred Stock with respect to dividends ("Dividend Junior Stock") or (ii) redeem, purchase or otherwise acquire for consideration any Dividend Junior Stock through a sinking fund or otherwise, unless (A) all accrued and unpaid dividends with respect to the Series F Preferred Stock at the time of such event have been paid or funds or shares of Common Stock have been set apart for payment of such dividends and (B) sufficient funds or shares of Common Stock have been paid or set apart for the payment of the dividend for the Dividend Period for which a dividend is next payable on the Series F Preferred Stock. Notwithstanding anything in this Certificate of Designations to the contrary, the Corporation may repurchase, redeem or otherwise acquire Dividend Junior Stock in exchange for Dividend Junior Stock and Dividend Parity Stock in exchange for Dividend Parity Stock or Dividend Junior Stock.
(e) So long as any shares of the Series F Preferred Stock are outstanding, if dividends in excess of the quarterly dividend amount set forth in paragraph (a) of Section (3) (such excess being the "Excess Dividend Amount”)") shall be declared or paid or set apart for payment in any Dividend Period on any Dividend Junior Stock or Dividend Parity Stock, dividends equal to the Excess Dividend Amount shall be contemporaneously declared and paid or declared and a sum sufficient for the payment thereof set apart for such payment on the Series F Preferred Stock with such payment with respect to each share of Series F Preferred Stock being equal to the distributions that would be made in respect of the aggregate of: (i) the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to into which such Annual Dividend Payment Dateshare of Series F Preferred Stock is then convertible; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, and (Aii) the number of shares of Common Stock that are permitted the Corporation would be required to be delivered issue as of such date in partial payment of the Dividend PIK Amount all dividends that, pursuant to paragraph (the “Actual Dividend PIK Payment Shares”a) shall be calculated by dividing of Section (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion 3), have accrued but remain unpaid as of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAPsuch date.
(ivf) Each Participating Dividends on the Series F Preferred Stock on account of arrears for any past Dividend or Annual Period and dividends on the Series F Preferred Stock in connection with any optional redemption may be declared and paid at any time, without reference to any Dividend shall be paid pro rata Payment Date, to holders of record on the Business Day immediately prior to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall payment thereof, as may be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated fixed by the Board of Directors Directors.
(g) Dividends payable on the Series F Preferred Stock for such dividends, which (i) with respect to Participating Dividends, any period other than a Dividend Period shall be computed on the same basis of a 360-day as the record date for the year consisting of twelve 30- day months. If a Dividend Payment Date is not a Business Day, payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding made on the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued next succeeding Business Day and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund accruing for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would intervening period shall be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend paid on the Preferred Stock but occurs on or prior to the next Annual succeeding Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
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Dividends. (a) Holders of the issued and outstanding shares of Series E Preferred Stock shall will be entitled to receive, when, as and if declared by the Board of Directors, out of funds legally available therefor, dividends on each share of the assets Series E Preferred Stock, calculated and payable quarterly (each such quarterly period being hereinafter called a "Dividend Period"), at a rate per annum equal to 6.5% of the Liquidation Preference of such share; provided, however, that without first obtaining stockholder approval pursuant to the rules of the Nasdaq Stock Market, or, in lieu thereof, if allowed by the Nasdaq Stock Market, otherwise delivering notice to stockholders, the aggregate number of shares of Common Stock that are issued as dividends pursuant to this Section (3) at a price below the Initial Market Price shall not exceed 20% of the number of shares of Common Stock that are issued and outstanding as of the Issue Date (the "Base Shares"). If the aggregate number of shares of Common Stock that have been issued as dividends on the Series E Preferred Stock pursuant to this Section (3) at a price below the Initial Market Price exceeds at any time 5% of the Base Shares, the Corporation agrees, for the benefit of the holders of the Series E Preferred Stock, to seek (if not previously obtained) approval at the next annual meeting of the Corporation's stockholders of the issuance of any future dividends payable in Common Stock pursuant to this paragraph (a) of this Section (3) which may exceed 20% of the Base Shares. All dividends on shares of the Series E Preferred Stock, to the extent accrued, shall be cumulative, whether or not earned or declared, on a daily basis from the last date through which dividends have been paid or, if no dividends have been paid, from the date upon which each such share of Series E Preferred Stock was initially issued, and shall be payable quarterly in arrears on March 15, June 15, September 15 and December 15 of each year (each a "Dividend Payment Date"), commencing on September 15, 1998, to holders of record on the Business Day immediately preceding the relevant Dividend Payment Date. Such dividends shall accrue whether or not they have been declared and whether or not there are net profits, surplus or other funds of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
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Dividends. (a) Holders of the issued and outstanding shares of Preferred Stock shall be entitled to receive, out of funds legally available therefor, and the assets Company shall pay, cumulative dividends at the rate per share of 6% per annum (as a percentage of the Corporation Stated Value per share), payable on the Conversion Date (as defined herein) for such share and on each June 30 and December 31 for so long as such share shall be outstanding, commencing June 30, 2000 (each of a Conversion Date and such semi-annual dates are referred to herein as a "DIVIDEND PAYMENT DATE"), commencing on the earlier to occur of such Conversion Date and June 30, 2000, in cash or shares of Common Stock (as defined in Section 9). Subject to the terms and conditions herein, the decision whether to pay dividends hereunder in Common Stock or cash shall be at the discretion of the Holder. Each Holder shall provide the Company written notice of its intention to cause the Company to pay dividends in cash or shares of Common Stock not less than five (5) Trading Days prior to each Dividend Payment Date for so long as shares of Preferred Stock are outstanding. Failure to timely provide such written notice shall be deemed an election by such Holder to receive dividends for such period in cash. Dividends on the Preferred Stock shall be calculated on the basis of a 360-day year, shall accrue daily commencing on the Original Issue Date (as defined in Section 9), 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 Company legally available for the payment of dividends. Except as otherwise provided herein, if at any time the Company pays less than the total amount of dividends then accrued on account of the terms described below:
(i) Preferred Stock, such payment shall be distributed ratably among the Holders based upon the number of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to held by each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”)Holder.
(b) Without So long as any Preferred Stock shall remain outstanding, the consent Company shall not redeem, purchase or otherwise acquire directly or indirectly any preferred stock of the Holders representing at least Company that ranks pari passu or is junior to the Preferred Stock unless it offers to purchase Preferred Stock ratably with such other preferred stock, nor shall the Company directly or indirectly pay or declare any dividend or make any distribution with respect to Junior Securities (as defined in Section 9) (other than a majority dividend or distribution described in Section 5 or dividends due and paid in the ordinary course on preferred stock of the then-issued Company at such times when the Company is in compliance with its payment and outstanding shares of Preferred Stockother obligations hereunder), the Corporation nor shall not (i) declare, pay or any monies be set aside for payment any dividends or distributions upon any Junior Securities applied to the purchase or redemption (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for through a sinking fund for the redemption or otherwise) of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value preferred stock of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able Company that ranks pari passu or is junior to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior unless the Company offers to the next Annual Dividend Payment Date, then Holders to set aside or apply such funds to the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicableratably with such other preferred stock.
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Samples: Convertible Preferred Stock Purchase Agreement (Commodore Holdings LTD)
Dividends. (a) Holders If the Company shall after the date of the issued and outstanding shares issuance of Preferred Stock shall be entitled this Warrant issue or distribute to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with the all or substantially all holders of shares of Common Stock in all dividends paid on evidences of indebtedness, any other securities of the shares of Company or any property, assets or cash, and if such issuance or distribution does not constitute a Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities Reorganization or Options) as if immediately prior to each a Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) Distribution (the “Participating Dividends”) shall be payable on the same date that any such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(inonexcluded event being herein called a "Dividend"), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (Ai) the number of shares of Common Stock that are permitted subject to be delivered in partial payment purchase upon exercise of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) this Warrant shall be calculated by dividing increased (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is but not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cashdecreased), which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on effective immediately after the record date designated by the Board of Directors for such dividends, at which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (Sock are determined for purposes of such Dividend, to a number determined by multiplying the “number of shares of Common Stock subject to purchase immediately before such Dividend Record Date”)by a fraction, the numerator of which shall be the Fair Market Value per share of outstanding Common Stock on such record date and the denominator of which shall be the Fair Market Value per share of outstanding Common Stock of the 13 14 Company on such record date less the then Fair Market Value of the evidences of indebtedness, securities, cash, or property or other assets issued or distributed in such Dividend with respect to one share of Common Stock, and (ii) with respect to Annual Dividends, the Exercise Price shall be decreased (but not more than thirty (30increased) days nor less than ten (10) days preceding to a price determined by multiplying the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least Exercise Price then in effect by a majority of the then-issued and outstanding shares of Preferred Stockfraction, the Corporation numerator of which shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions be the number of shares of Junior Securities with respect Common Stock subject to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the upon exercise of Options or delivery this Warrant immediately before such Dividend and the denominator of equity awards) under any equity incentive plan or similar arrangements which shall be the number of shares of Common Stock subject to purchase upon exercise of this Warrant immediately after such Dividend. If after the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available date of issuance of this Warrant the Company repurchases shares of Common Stock for a sinking fund for per share consideration which exceeds the redemption Fair Market Value (as calculated immediately prior to such repurchase), then the number of any shares of such Junior SecuritiesCommon Stock purchasable upon exercise of this Warrant and the Exercise Price shall be adjusted in accordance with the foregoing provisions, unlessas if, in each caselieu of such repurchases, the Company had (I) distributed a Dividend having a Fair Market Value equal to the Fair Market Value of all property and cash expended in the repurchase, and (II) effected a reverse split of he Common Stock in the proportion required to reduce the number of shares of Common Stock outstanding from (A) the number of such shares outstanding immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), first repurchase to (B) immediately after the taking number of such action, shares outstanding immediately following all the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable lawrepurchases.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 1 contract
Dividends. (a) Holders of If on any date while RSUs are outstanding hereunder the issued and outstanding shares of Preferred Stock Company shall pay any cash dividend on the Shares, the Participant shall be entitled to receive, out as of such dividend payment date, a cash payment equal to the assets product of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment Vested RSUs, if any, held by the Participant as of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cashrelated dividend record date, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend per Share amount of such cash dividend. In the case of any dividend declared on Shares that is payable in the form of Shares, the Participant shall be paid pro rata granted, as of the applicable dividend payment date, a number of Shares (rounded down to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable next whole Share) equal to the Holders product of Preferred Stock as they appear on (x) the Register at the Close number of Business on the record date designated Vested RSUs, if any, that have been held by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be Participant through the same day as the related dividend record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”)multiplied by (y) the number of Shares (including any fraction thereof) payable as a dividend on a Share.
(b) Without If on any date while RSUs are outstanding hereunder the consent Company shall pay any dividend on the Shares (whether payable in cash, Shares or other securities), the Participant shall be granted, as of the Holders representing at least applicable dividend payment date, a majority number of additional restricted stock units (the then-issued and outstanding shares “Dividend RSUs”) (rounded down to the next whole unit) equal to the product of Preferred Stock(x) the aggregate number of Unvested RSUs that have been held by the Participant through the related dividend record date, the Corporation shall not multiplied by (iy) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after in the taking case of such actiona dividend payable in Shares, the fair value number of the Corporation’s assets would exceed the sum of its debts Shares (including for this purpose the aggregate Liquidation Preference any fraction thereof) payable as a dividend on a Share and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after in the taking case of a dividend payable in cash or other securities, the quotient of (I) the amount of such actioncash dividend payable as a dividend on a Share (or fair market value, as determined by the CorporationCommittee, in its good faith judgmentof such other securities payable as a dividend on a Share), would be able to pay all of its debts divided by (including II) the aggregate Liquidation Preference and the aggregate Accrued Dividends Fair Market Value per Share as of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable lawdividend payment date.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 1 contract
Samples: Restricted Stock Unit Agreement (Cohen & Steers Inc)
Dividends. 4.1 Each Party shall take all actions that it is able to take and shall procure, so far as it is able to do so (a) Holders and shall procure that the members of its Group shall procure, so far as they are able to do so), that all actions able to be taken are taken so that, prior to commencement of the issued Demerger Completion Steps:
(A) JVCo shall declare and outstanding shares pay the Final Quarterly Dividend to GSKCHHL and PFCHHL;
(B) GSKCHHL shall declare and pay the Final Quarterly GSKCHHL Onward Dividend to GSK (as holder of Preferred Stock the A Shares and the B Shares) and (if and only to the extent the SLPs are entitled to receive such dividend under the GSKCHHL Articles of Association) to the SLPs (as holders of the C Shares);
(C) PFCHHL shall declare and pay or otherwise effect the Final Quarterly PFCHHL Onward Dividend to Pfizer;
(D) JVCo shall, at a time notified by GSK reasonably in advance of proposed payment (which time shall be agreed between GSK and Pfizer in accordance with the Treasury Side Letter), declare and pay a final pre-Demerger interim dividend to GSKCHHL and PFCHHL in proportion to their respective Percentage Interests in JVCo as at the relevant record date in respect of the period to and including [•] 2022 comprising the Final Sweep Dividend which, as provided in the Treasury Side Letter, shall be calculated by reference to a good faith estimate of what the Sweep Amount will be as at the Listing Date, such estimate being made in accordance with the Treasury Side Letter;
(E) GSKCHHL shall declare and pay a final pre-Demerger interim dividend to GSK (as holder of the A Shares and the B Shares) and (if any, only to the extent the SLPs are entitled to receive, out receive such dividend under the GSKCHHL Articles of Association) to the SLPs (as the holders of the assets C Shares) in accordance with the GSKCHHL Articles of Association comprising amounts received by GSKCHHL pursuant to (D) above and constituting the Final Sweep GSKCHHL Onward Dividend;
(F) PFCHHL shall declare and pay or otherwise effect a final pre-Demerger interim dividend to Pfizer comprising amounts received by it pursuant to (D) above and constituting the Final Sweep PFCHHL Onward Dividend;
(G) [consistent with the provisions of clause 4.4, ]following repayment of any outstanding Shareholder Loans under clause 17.32(A) of the Corporation legally available Cosmos SHA, JVCo shall, at a time notified by GSK reasonably in advance of proposed payment (which time shall be agreed between GSK and Pfizer in accordance with the Treasury Side Letter and shall be reasonably in advance of the commencement of the Demerger Completion Steps to allow sufficient time for the payments described in (H) and (I) below to be made prior to the commencement of the Demerger Completion Steps), declare and pay the Pre-Separation Dividend to GSKCHHL and PFCHHL in proportion to their respective Percentage Interests in JVCo;
(H) [consistent with the provisions of clause 4.4, ]GSKCHHL shall declare and pay the Pre-Separation GSKCHHL Onward Dividend (comprising amounts received by it pursuant to (G) above) to GSK in respect of the A Shares and the B Shares and the Parties hereby agree and acknowledge that, subject to (G) above, it is GSK’s responsibility to ensure that the Pre-Separation GSKCHHL Onward Dividend is declared and paid prior to the commencement of the Demerger Completion Steps;
(I) [consistent with the provisions of clause 4.4, ]PFCHHL shall declare and pay or otherwise effect the Pre-Separation PFCHHL Onward Dividend (comprising amounts received by it pursuant to (G) above) to Pfizer and the Parties hereby agree and acknowledge that, subject to (G) above, it is Pfizer’s responsibility to ensure that the Pre-Separation PFCHHL Onward Dividend is declared and paid or otherwise effect prior to the commencement of the Demerger Completion Steps;
(J) GSKCHHL shall declare and pay to GSK (as holder of the A Shares and the B Shares) and (if and only to the extent that the SLPs are entitled to receive such dividend under the GSKCHHL Articles of Association) to the SLPs a dividend comprising amounts received by GSKCHHL as dividends paid by JVCo and which are directly referable to dividends received by GSKCHHL from JVCo since Cosmos Closing (if any and other than amounts received by GSKCHHL pursuant to (A), (D) and/or (G) above); and
(K) PFCHHL shall declare and pay or otherwise effect to Pfizer a dividend comprising amounts received by PFCHHL as dividends paid by JVCo and which are directly referable to dividends received by PFCHHL from JVCo since Cosmos Closing (if any and other than amounts received by PFCHHL pursuant to (A), (D) and/or (G) above).
4.2 For the avoidance of doubt, the payment of dividendsthe Final Sweep Dividend shall be paid separately from the Pre-Separation Dividend and no amount of cash taken into account in calculating the amount of the Pre-Separation Dividend shall also be taken into account in calculating the amount of the Final Sweep Dividend.
4.3 [For the avoidance of doubt, dividends on the terms described belowParties agree and acknowledge that:
(A) it is Pfizer’s responsibility to ensure that the PFCHHL Onward Dividends are declared and paid or otherwise effected prior to the commencement of the Demerger Completion Steps and promptly and as soon as possible after receipt by PFCHHL of the later of: (i) Holders the relevant portion of shares the Pre-Separation Dividend; and (ii) the relevant portion of Preferred Stock the Final Sweep Dividend; and
(B) it is GSK’s responsibility to ensure that the GSKCHHL Onward Dividends are declared and paid prior to the commencement of the Demerger Completion Steps and promptly and as soon as possible after receipt by GSKCHHL of the later of: (i) the relevant portion of the Pre-Separation Dividend; and (ii) the relevant portion of the Final Sweep Dividend.]
4.4 [The Parties further agree to co-operate and take all necessary actions so that the Final Sweep Dividend and the Pre-Separation Dividend shall be entitled to participate equally paid by JVCo [as soon as possible following the passing of the Demerger Resolution and ratably with the holders of shares of Common Stock Related Party Transactions Resolution by GSK Shareholders at the GSK General Meeting and in all dividends paid any event by [•] p.m. on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if day immediately prior to each Common Stock Dividend Record Datethe day specified in the Steps Plan for Demerger Completion.] The Parties hereby agree and acknowledge that, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- set out in the immediately preceding sentence, there is sufficient time for payment or 366-day year, as applicable) equal to 8.00% completion of the Liquidation Preference per share PFCHHL Onward Dividends and the GSKCHHL Onward Dividends ahead of Preferred Stock (Demerger Completion and completion of the “Share Exchanges.]
4.5 [Subject to the Pre-Separation Dividend Rate”), payable and the Final Sweep Dividend having been paid by JVCo in accordance with Section 4(a)(iii) below. Subject to Section 4(c)the timing specified in clause 4.4, Annual Dividends Demerger Completion shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation occur pursuant to Section 5, upon a conversion and at the time and date specified in the Demerger Agreement and completion of the Preferred Stock following a Fundamental Transaction each Share Exchange shall occur pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of time and date specified in the Corporation applicable Exchange Agreement. In the event that the Pre-Separation Dividend and/or the Final Sweep Dividend have not been paid by JVCo in its sole discretion, be paid (A) accordance with the timing specified in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, clause 4.4:
(A) the number of shares of Common Stock Parties agree that are permitted they shall co-operate to be delivered in partial procure the payment of the Pre-Separation Dividend PIK Amount and/or the Final Sweep Dividend (the “Actual Dividend PIK Payment Shares”as applicable) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and JVCo as soon as possible after such time;
(B) Pfizer agrees that it shall procure the payment or completion of the PFCHHL Onward Dividends as soon as possible following payment of the relevant portion of the Annual Pre-Separation Dividend and/or the Final Sweep Dividend (as applicable) to PFCHHL pursuant to clause 4.5(A);
(C) GSK agrees that is it shall procure the payment of the GSKCHHL Onward Dividends as soon as possible following payment of the relevant portion of the Pre-Separation Dividend and/or the Final Sweep Dividend (as applicable) to GSKCHHL pursuant to clause 4.5(A);
(D) provided that the PFCHHL Onward Dividends and the GSKCHHL Onward Dividends have been paid or effected before the time specified in the Steps Plan for Demerger Completion, then, notwithstanding any failure to pay the Pre-Separation Dividend and/or the Final Sweep Dividend in accordance with the timing specified in clause 4.4, Demerger Completion, completion of the Share Exchanges and Admission shall occur in accordance with the relevant times and dates specified in the Steps Plan; and
(E) if any of the PFCHHL Onward Dividends and/or the GSKCHHL Onward Dividends are not paid or effected by delivery PFCHHL and/or GSKCHHL (as applicable) prior to the time specified in the Steps Plan for Demerger Completion, then the Parties agree that: (i) the time and date specified in the Steps Plan for Demerger Completion, completion of the Actual Dividend PIK Payment Shares Share Exchanges and Admission shall each be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied delayed by one calendar week; (ii) the 10-Day VWAP.
Parties shall make necessary amendments to the Demerger Agreement, each of the Exchange Agreements and any other Transaction Documents to reflect the same; (iii) Pfizer shall take all reasonably necessary actions to prepare for and procure the payment or completion of the PFCHHL Onward Dividends in accordance with the timing detailed in clause 4.3(A); (iv) Each Participating Dividend or Annual Dividend GSK shall be paid pro rata take all reasonably necessary actions to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors prepare for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for and procure the payment of dividends the GSKCHHL Onward Dividends in accordance with the timing detailed in clause 4.3(B) and (v) notwithstanding anything in this Agreement or the Demerger Agreement to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”)contrary, and (ii) with respect without limiting the obligations of Haleon pursuant to Annual the Dividend Indemnities, the Parties expressly agree that Haleon shall hold any portions of the PFCHHL Onward Dividends and/or the GSKCHHL Onward Dividends, shall be as applicable, that are not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem paid or otherwise acquire any Junior Securities (other than repurchaseseffected by PFCHHL or GSKCHHL prior to such time, redemptions due to a settlement failure or acquisitions of shares of Junior Securities with respect to equity awards (including otherwise, in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund trust for the redemption of any shares of such Junior SecuritiesPfizer Group or the GSK Group, unlessas applicable, in each case, (A) immediately before and after shall cooperate with the taking of such action, Pfizer Group or the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversionGSK Group, as applicable, to receivetake all reasonably necessary actions to establish alternative arrangements for, on orand to procure, at the Corporation’s election, before payment of such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share amounts to designees of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date Pfizer Group or Conversion Datethe GSK Group, as applicable, as soon as reasonably practicable.]
4.6 JVCo shall only be required to declare and/or pay dividend(s) in accordance with this clause 4 to the extent that:
(A) it has sufficient distributable reserves and, without limiting the obligations of any Party under the Cosmos SHA, the Treasury Side Letter and/or this Agreement, the JVCo Board resolves to do so;
(B) there are no amounts outstanding (in respect of interest, principal or otherwise) under any JVCo Shareholder Loan(s); and
(C) there are no outstanding special dividends in respect of payment obligations pursuant to clause 10.1 of the Cosmos SHA which have been declared or become payable.
4.7 Except where dividends are to be paid in a currency other than Sterling in accordance with the terms of the Cosmos SAPA, dividends shall be paid in Sterling. The Final Quarterly Dividend shall be paid on or around [•]. The Final Sweep Dividend and Pre-Separation Dividend shall be paid to GSKCHHL and PFCHHL on the same day (and are expected to be paid on [•]). All dividends shall be paid or settled by inter-bank transfer, by other electronic means for same day value directly to an account with a bank or other financial institution (or other organisations operating deposit accounts) as notified in writing by GSKCHHL or PFCHHL (as applicable) to JVCo, or by settling existing intercompany debt balances. For dividends being paid by inter-bank transfer or by other electronic means then, in the absence of any notification required pursuant to the immediately preceding sentence, JVCo shall hold the amount of the relevant dividend on trust for GSKCHHL or PFCHHL (as applicable).
4.8 The Parties shall, subject to and in accordance with the Cosmos SHA and the Treasury Side Letter:
(A) cooperate and take such steps as are reasonably required in connection with distributable reserves planning for JVCo and its Group to enable the payment of the Final Quarterly Dividend, the Final Sweep Dividend and the Pre-Separation Dividend; and
(B) cooperate in good faith to determine the timing of all dividends and payments contemplated by this clause 4 so as to ensure, so far as they are each able to do so, that each such dividend and payment is paid and made prior to the commencement of the Demerger Completion Steps.
4.9 JVCo shall, so far as it is legally able to do so, procure that (and GSKCHHL and PFCHHL shall, so far as they are legally able to do so, exercise their rights in relation to JVCo and under this Agreement and the Cosmos SHA to procure that) all resolutions for the declaration or payment of dividends or other payments consistent with this clause 4 are duly passed by the relevant members of the JVCo Group and the JVCo Board (as applicable).
4.10 In the event that any of:
(A) the Final Quarterly Dividend;
(B) the Final Sweep Dividend;
(C) the Pre-Separation Dividend;
(D) the other dividends paid by JVCo since Cosmos Closing;
(E) the Final Quarterly Onward Dividends;
(F) the Final Sweep Onward Dividends;
(G) the Pre-Separation Onward Dividends; and
(H) the dividends distributions or transfers paid by GSKCHHL and/or PFCHHL since Cosmos Closing to the extent directly referable to dividends received by GSKCHHL and/or PFCHHL (as applicable) from JVCo since Cosmos Closing, are in any respect defective or are susceptible to legal challenge, Haleon agrees and undertakes to take or procure all possible steps, (including, without limitation, distributable reserves planning and management; rectification and ratification steps; and procuring that none of JVCo, GSKCHHL or PFCHHL or any other member of Haleon’s Group take steps to seek recovery of prior distributions, transfers or dividend payments) such that any amounts received by any member of the GSK Group or any member of the Pfizer Group pursuant to any of the dividends, distributions or transfers listed at (A) to (H) of this clause 4.10 can be retained by the relevant member(s) of the GSK Group or the Pfizer Group (as applicable), provided that nothing in this clause 4.10 shall require any Party to take any action that is or would be unlawful.
4.11 Haleon shall indemnify GSK, each member of the GSK Group, Pfizer and each member of the Pfizer Group from and against any and all liabilities and Costs arising before, on, or after Completion in respect of:
(A) any defect in, or any actual or potential claim, proceeding, suit or action brought (notwithstanding clause 4.10 above) by any member of the Haleon Group that arises out of or in connection with any of the dividends, distributions or transfers listed at clause 4.10(A) to (H) (inclusive); and
(B) any failure by Haleon to take all possible steps required pursuant to clause 4.10 to ensure that any amounts received by any member of the GSK Group or any member of the Pfizer Group pursuant to any of the dividends, distributions or transfers listed at clause 4.10(A) to (H) (inclusive) can be retained by the relevant member(s) of the GSK Group and/or the Pfizer Group (as applicable).
Appears in 1 contract
Samples: Separation Cooperation and Implementation Agreement (Haleon PLC)
Dividends. (a) Holders of the issued and outstanding shares of Preferred Stock shall be entitled to receive, when and as declared by the Board of Directors out of funds legally available therefor, and the assets Company shall pay, cumulative dividends at the rate per share (as a percentage of the Corporation Stated Value per share) equal to 14% per annum, payable, in cash or shares of Common Stock at the option of the Company, semi-annually in arrears, but in no event later than the applicable Exchange Date (as hereinafter defined). Dividends on the Preferred Stock shall be calculated on the basis of a 360-day year, shall accrue daily commencing the Original Issue Date (as defined in Section 6), and shall be deemed to accrue on such date whether or not earned or declared and whether or not there are profits, surplus or other funds of the Company legally available for the payment of dividends. The party that holds the Preferred Stock of record on an applicable record date for any dividend payment will be entitled to receive such dividend payment and any other accrued and unpaid dividends which accrued prior to such dividend payment date, without regard to any sale or disposition of such Preferred Stock subsequent to the applicable record date but prior to the applicable dividend payment date. Except as otherwise provided herein, if at any time the Company pays less than the total amount of dividends then accrued on account of the Preferred Stock, such payment shall be distributed ratably among the holders of the Preferred Stock based upon the number of shares held by 2 each holder. Payment of dividends on the terms described below:Preferred Stock is further subject to the provisions of Section 4(a)(ii).
(ib) Holders of shares of Preferred Stock shall be entitled Notwithstanding anything to participate equally and ratably with the holders of contrary contained herein, the Company may not issue shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends (and shall be payable annually must deliver cash in arrears, if, as and when so authorized and declared by the Board of Directors, respect thereof) on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).if:
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (Ai) the number of shares of Common Stock that are permitted at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to be delivered issue such dividends in partial payment shares of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by Common Stock;
(ii) such shares of Common Stock are not registered for resale pursuant to an effective registration statement that names the 10-Day VWAP.recipient of such dividend as a selling stockholder thereunder and such shares may not be sold without volume restrictions pursuant to Rule 144 as determined by counsel to the Company and set forth in a written opinion letter, addressed to the recipient of such dividend, in form and substance acceptable to such recipient;
(iii) such shares of Common Stock are not listed on the American Stock Exchange (or the Nasdaq National Market, Nasdaq SmallCap Market or The New York Stock Exchange) and any other exchange or quotation system on which the Common Stock is then listed for trading; or
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders issuance of such shares would result in the recipient thereof beneficially owning, as determined in accordance with Rule 13d-3 promulgated under the Securities Exchange Act of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock 1934, as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividendsamended, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent 4.9% of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Common Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If So long as any Preferred Stock shall remain outstanding, neither the Fundamental Transaction Date Company nor any subsidiary thereof shall redeem, purchase or Conversion Date otherwise acquire, directly or indirectly any Junior Securities (as defined in Section 6), nor shall the Company, directly or indirectly, pay or declare any dividend or make any distribution (other than a dividend or distribution described in Section 4) upon, nor shall any distribution be made in respect of, any Junior Securities, nor shall any monies be set aside for or applied to the purchase or redemption (through a sinking fund or otherwise) of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend Junior Securities unless all accrued and unpaid dividends on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicablefor all past dividend periods shall have been paid.
Appears in 1 contract
Samples: Class B Exchange Agreement (Substance Abuse Technologies Inc)
Dividends. (a) Holders 3.01 The Corporation shall pay to the holders of the issued Series "A" Preferred Stock out of the assets of the Corporation at any time available for the payment of dividends at the times and outstanding in the amounts provided for in this section 3.
3.02 Subject to the rights of the holders of any shares of any series of preferred stock (or any similar stock) ranking prior and superior to the Series "A" Preferred Stock with respect to dividends, the holders of the shares of Series "A" Preferred Stock shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled in preference to participate equally and ratably with the holders of Common Stock and any other junior stock, dividends payable on the dates on which a dividend or distribution on the Common Stock is payable (other than a dividend payable in Common Stock), commencing on the first date on which such a dividend is payable after the first issuance of a share or fraction of a share of Series "A" Preferred Stock, in an amount per share (rounded to the nearest cent) equal to 100 times the aggregate per share amount of all cash dividends and 100 times the aggregate per share amount (payable in kind) of all non-cash dividends or other distributions (other than a dividend payable in shares of Common Stock in all dividends paid on or a subdivision of the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of by reclassification or otherwise) declared on the Common Stock unless since the full dividends contemplated by this Section 4(a)(i) are paid at immediately preceding dividend payment date on the same time to Common Stock, or, if later, the Holders first issuance of the any share or fraction of a share of Series "A" Preferred Stock.
(ii) In addition 3.03 Any payment of dividends declared and due under this section 3 with respect to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board shares of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Series "A" Preferred Stock (the “Annual Dividends”) at shall be made by means of a rate per annum (calculated check drawn on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally immediately available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, thereof to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion order of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder holder of such share at the Close of Business address for such record holder shown on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction stock records maintained by or conversion, as applicable, to receive, on or, at for the Corporation’s election, before which check shall be mailed by United States first class mail, postage prepaid. Any such Annual Dividend Payment Datepayment shall be deemed to have been paid by the Corporation on the date that such payment is deposited in the United States mail as provided above; provided, that in the event the check or other medium by which any payment shall be made shall prove not to be immediately collectible on the date of payment, such payment shall not be deemed to have been made until cash in the amount of such payment shall actually be received by the person entitled to receive such payment.
3.04 Registration of transfer of any share of Series "A" Preferred Stock on the stock records maintained by or for the Corporation to a person other than the transferor shall constitute a transfer of any right which the transferor may have had to receive any accrued but unpaid dividends as of the date of transfer, whether declared Annual Dividend on or undeclared, and the Corporation shall have no further obligation to the transferor with respect to such shareaccrued and unpaid dividends. Except Any shares of Series "A" Preferred Stock represented by a new certificate issued to a new holder shall continue to accrue dividends as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicablesection 3.
Appears in 1 contract
Samples: Rights Agreement (Sento Corp)
Dividends. (ai) Holders In each fiscal year of the issued and outstanding shares Corporation, the holders of the 12% Preferred Stock shall be entitled to receive, when and as declared by the Board of Directors of the Corporation out of the assets of the Corporation funds legally available for the payment of dividendsthat purpose, dividends payable in cash at the rate of twelve per cent (12%) per annum on the terms described below:
Liquidation Value (ias defined in subsection 2(a) Holders hereof) of such shares, and no more, payable quarterly on the first day of March, June, September and December in each year (each such date being referred to herein as a “Quarterly Dividend Date”). The dividends on shares of the 12% Preferred Stock shall be entitled cumulative and shall commence to participate equally accrue from the date of issue of such shares, so that if in any year dividends on the 12% Preferred Stock at the rate of twelve per cent (12%) per annum of the Liquidation Value thereof shall not have been paid or declared and ratably with set apart, the deficiency shall, except as otherwise provided in paragraph (ii) of this subsection 1(a), remain payable by the Corporation to the holders of the 12% Preferred Stock. Until all outstanding shares of Common the 12% Preferred Stock have been redeemed by the Corporation in all dividends accordance with Sections 6 and 7 hereof, no dividend or other distribution payable in cash shall be paid on the any shares of Common Stock (other than dividends paid in the form of Common Corporation’s Series A Stock, Convertible Securities Series B Stock or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition the event that the Corporation shall, for any reason, be unable to pay or declare and set apart any dividends pursuant to Section 4(a)(idividend on the 12% Preferred Stock as provided in paragraph (i) of this subsection l(a) (“Defaulted Dividend”), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividendsshall, to the extent unpaidit may lawfully do so, shall issue in all cases be payable upon lieu of the Defaulted Dividend, a stock dividend of additional shares of the 12% Preferred Stock having a Liquidation pursuant Value equal to Section 5, upon a conversion the amount of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Defaulted Dividend payments shall be aggregated per Holder and shall be made (rounded to the nearest cent (whole share with $0.005 being one-half share rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 1 contract
Samples: Transfer and Administration Agreement (Fresenius Medical Care AG & Co. KGaA)
Dividends. (a) Holders From and after the date of this Agreement until the earlier of the issued Effective Time and outstanding termination of this Agreement, neither Parkway, Parkway LP nor Cousins shall make, declare or set aside any dividend or other distribution to its respective stockholders without the prior written consent of Parkway (in the case of Cousins) or Cousins (in the case of Parkway or Parkway LP); provided, however, that the written consent of the other party shall not be required for the authorization and payment of quarterly distributions at a rate not in excess of the regular quarterly cash dividend most recently declared prior to the date of this Agreement with respect to each of the shares of Preferred Parkway Common Stock shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of and shares of Preferred Cousins Common Stock, respectively (it being agreed that the timing of any such quarterly distributions will be coordinated so that, if either the holders of Parkway Common Stock shall be entitled to participate equally and ratably with or the holders of shares of Cousins Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately receives a distribution for a particular quarter prior to each Common Stock Dividend Record the Closing Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Cousins Common Stock (and the “holders of Parkway Common Stock Dividend Record Date”)Stock, and (ii) with respect to Annual Dividendsrespectively, shall receive a distribution for such quarter prior to the Closing Date); provided, further, however, that the record and payment dates for Cousins’s and Parkway’s distributions pursuant to this Section 5.10(a) shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).same as the other party’s record and payment dates. Table of Contents
(b) Without Notwithstanding the consent foregoing or anything else to the contrary in this Agreement, each of the Holders representing at least Parkway and Cousins, as applicable, shall be permitted to declare and pay a majority of the then-issued and outstanding shares of Preferred Stockdividend to its stockholders, the Corporation record date and payment date for which shall not be the close of business on the last Business Day prior to the Closing Date, distributing any amounts determined by such party (iin each case in consultation with the other party) declare, pay or set aside to be the minimum dividend required to be distributed in order for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect such party to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due qualify as a result REIT and to avoid to the extent reasonably possible the incurrence of the exercise of Options income or delivery of equity awards) under excise Tax (any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for dividend paid pursuant to this paragraph, a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock“REIT Dividend”), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If either party determines that it is necessary to declare a REIT Dividend, it shall notify the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or other party at least twenty (20) days prior to the next Annual Dividend Payment Datedate for the Parkway Stockholders Meeting, then in the Holder case of a declaration by Parkway, or the Cousins Stockholders Meeting, in the case of a declaration by Cousins, and such other party shall be entitled to declare a dividend per share at payable (i) in the Close case of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicableParkway, to receiveholders of Parkway Common Stock, on orin an amount per share of Parkway Common Stock equal to the quotient obtained by dividing (A) the REIT Dividend declared by Cousins with respect to each share of Cousins Common Stock by (B) the Exchange Ratio and (ii) in the case of Cousins, at to holders of shares of Cousins Common Stock, in an amount per share of Cousins Common Stock equal to the Corporation’s election, before such Annual product of (x) the REIT Dividend Payment Date, such declared Annual Dividend on such shareby Parkway with respect to each share of Parkway Common Stock and (y) the Exchange Ratio. Except as provided in The record date and payment date for any dividend payable pursuant to this Section 4(c), Annual Dividends 5.10(c) shall be the close of business on any share of Preferred Stock will cease the last Business Day prior to accumulate from and after the Fundamental Transaction Date or Conversion Closing Date, as applicable.
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Dividends. (a) Holders The holders of the issued and outstanding shares of Series F Preferred Stock shall be entitled to receivereceive per share cumulative cash dividends, out at the time and in an amount not less than the amount declared payable by the Board of Directors per share of Common Stock multiplied by the applicable Conversion Rate, prior to, or at the same time as, any dividend or distribution in cash on shares of Common Stock shall be declared or paid or set apart for payment. The holders of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Series F Preferred Stock also shall be entitled to participate equally receive per share dividends and ratably with distributions prior to, or at the holders of shares of Common Stock in all dividends paid on the shares of Common Stock same time as, any non-cash dividend or distribution (other than dividends paid a dividend or distribution payable solely in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable declared or paid on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be such per share dividend or distribution on each share of Series F Preferred Stock being equal to the dividend or distribution payable to holders of shares of per share on Common Stock unless the full dividends contemplated multiplied by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock into which a share of Series F Preferred Stock is then convertible and payable in the same type of property paid to be delivered holders of Common Stock.
(b) In the event that the per share cash dividends paid to the holders of the shares of Series F Preferred Stock pursuant to Section 2(a) above in any fiscal quarter are less than $1.925, then the holders of the shares of Series F Preferred Stock shall be determined entitled to receive an additional dividend per share, payable in shares of Series F Preferred Stock, in a number of shares equal to (A) the difference between (i) $1.925 and (ii) the cash dividend paid in such fiscal quarter pursuant to Section 2(a) above, divided by dividing (B) $192.50, subject to adjustment as provided in the Dividend PIK Amount last sentence of Section 2(c) below.
(c) In-kind dividends on the Series F Preferred Stock shall be declared by the 10-Day VWAP with respect Board of Directors on or prior to the last business day of each fiscal quarter (the term "business day" as used herein shall mean any day other than a Saturday, Sunday or legal holiday) and payable on the first day of the next fiscal quarter, commencing January 3, 2000 (each such Annual date being hereinafter individually a "Dividend Payment Date; provided that" and collectively the "Dividend Payment Dates"), where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, except that if the 10-Day VWAP with respect to any such Annual Dividend Payment Date is less than the Floor Pricenot a business day, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares then such dividend shall be payable in cash, on the first immediately succeeding calendar day which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product is a business day to holders of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock record as they appear on the Register at books of the Close of Business Corporation on the last business day of the fiscal quarter immediately preceding such Dividend Payment Date or such other date as may be determined by the Board of Directors. In-kind dividend payments shall be rounded to the nearest 1/100th of a share of Series F Preferred Stock or if there is no nearest 1/100th to the next highest 1/100th of a share. Dividends in arrears may be declared and paid at any time, without reference to any regular Dividend Payment Date, to holders of record on such date designated as may be fixed by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed . Dividends payable on the sum Series F Preferred Stock for the initial dividend period and for any period less than a full fiscal quarter shall be prorated based on the number of its debts (including for this purpose days such Series F Preferred Stock is outstanding during such quarter, and computed on the aggregate Liquidation Preference and the aggregate Accrued Dividends basis of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of a 90 day quarter; provided that any share of Series F Preferred Stock is after issued as part of an Annual Dividend Payment Record Date for a declared Annual Dividend in-kind dividend on the Preferred Stock but occurs on first business day of a fiscal quarter shall be deemed for purposes of calculating dividends to be outstanding for the full fiscal quarter whether or prior to not such day of issuance was the next Annual Dividend Payment Date, then the Holder first day of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicablefiscal quarter.
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Dividends. (a) Holders The holders of the issued and outstanding shares of Series A Preferred Stock (collectively, the “Holders” and each, a “Holder”) shall be entitled to receive, receive preferential dividends at the rate of 8% per share per annum on the Series A Stated Value out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available thereforunder all applicable law for such purpose, but before any dividend or other distribution will be paid or declared and set apart for payment on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share any shares of Preferred any Junior Stock (defined below). Such dividends shall compound annually and be fully cumulative, and shall accumulate from the “Annual Dividends”) at a rate per annum (calculated on the basis date of an actual 365- or 366-day year, as applicable) equal to 8.00% original issuance of the Liquidation Preference per share of Series A Preferred Stock (the “Dividend Rate”)Stock, payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually on the last day of each calendar year, in arrearsarrears in cash or as described below (provided that if the last day of a calendar year is a Saturday, ifSunday or legal holiday in New York, as and when so authorized and declared by the Board of DirectorsNY, then such dividend shall be payable, without interest for such additional day(s), on each Annual Dividend Payment Datethe next day that is not a Saturday, commencing Sunday or legal holiday). Upon the occurrence of an Event of Default (as defined below) and while such Event of Default is outstanding, such dividend rate shall be increased to 15% per annum on the first Annual Dividend Payment Date following the Issuance Date of such shareSeries A Stated Value. Accrued Dividends, Dividends must be delivered to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section Holders not later than five (5, upon a conversion of ) business days after each specified dividend payment date. At the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the Corporation’s option of the Corporation in its sole and absolute discretion, such dividend payments may be paid made in (Ai) in cash, (B) by delivery of additional shares of Common StockSeries A Preferred Stock valued at the Series A Stated Value thereof, in an amount equal to 150% of the cash dividend otherwise payable or (Cii) by delivery of any a combination of cash and additional shares of Common Series A Preferred Stock; , provided thatthere is not an existing current Event of Default on the annual date on which a dividend payment is payable, if in which event the Corporation elects Holder entitled to pay all receive such dividend may elect to receive such dividends in cash or any part of the total amount of an Annual Dividend in additional shares of Common Stock (Series A Preferred Stock. The issuance of such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Series A Preferred Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to constitute full payment of such Annual Dividend Payment Date; provided that, where the Corporation has determined dividends or such portion of such dividends payable in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of additional shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cashSeries A Preferred Stock, which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”)case may be. 12/7/2010, and (ii) with respect to Annual Dividends6:12, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).PM
(b) Without The dividends on the consent Series A Preferred Stock at the rates provided above shall be cumulative whether or not declared so that, if at any time full cumulative dividends at the rate aforesaid on all shares of the Holders representing at least a majority Series A Preferred Stock then outstanding from the date from and after which dividends thereon are cumulative to the end of the then-issued annual dividend period next preceding such time shall not have been paid or declared and set apart for payment, or if the full dividend on all such outstanding Series A Preferred Stock for the then current dividend period shall not have been paid or declared and set apart for payment, the amount of the deficiency shall be paid or declared and set apart for payment before any sum shall be set apart for or applied by the Corporation or a subsidiary of the Corporation to the purchase, redemption or other acquisition of the Series A Preferred Stock or any shares of any other class of stock ranking on a parity with the Series A Preferred Stock, the Corporation Stock and before any dividend or other distribution shall not (i) declare, pay be paid or declared and set apart for payment on any Junior Stock and before any sum shall be set aside for payment any dividends or distributions upon applied to the purchase, redemption or other acquisition of any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
Appears in 1 contract
Dividends. (a) Holders of Except to the issued and outstanding shares of Preferred Stock shall be entitled to receive, out of the assets of the Corporation legally available extent required in order for the payment REIT to maintain its status as an entity taxed as a real estate investment trust in accordance with the written advice of dividendscounsel, dividends on the terms described below:
REIT will not, and will not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to the REIT or any of its Subsidiaries, except that (i) Holders any Subsidiary of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Borrower may pay cash Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders Borrower or to a wholly-owned Subsidiary of the Preferred Stock.
Borrower, (ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds non-wholly-owned Subsidiary of the Corporation legally available thereforBorrower may pay cash Dividends to its shareholders, on each Annual Dividend Payment Date for the applicable Payment Period partners or Payment Periods dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when other equity holders generally so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated long as (x) the total Dividend PIK Amount less Borrower or its respective Subsidiary which owns the equity interest or interests in the Subsidiary paying such Dividends receives at least its proportionate share thereof (y)(i) based upon its relative holdings of equity interests in the product Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the Actual Dividend PIK Payment Shares multiplied various classes of equity interests in such Subsidiary) and (y) no Dividends may be paid by any non wholly-owned Subsidiary of the Borrower (iiother than ET Capital Corp.) at any time that any intercompany loans are outstanding to such Subsidiary, and (iii) so long as no Default or Event of Default then exists or would result therefrom, the 10-Day VWAP.
Borrower may pay cash Dividends to the REIT, which in turn may pay cash Dividends to its shareholders to the extent of any Dividends received by the REIT from the Borrower, provided that the aggregate amount of cash Dividends paid by the REIT pursuant to this clause (iviii) Each Participating Dividend or Annual Dividend in any fiscal quarter of the REIT shall not exceed 89% of the REIT's estimated funds from operations for such fiscal quarter, and provided further that no Dividends shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which REIT pursuant to this clause (iiii) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent in any fiscal quarter of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or REIT prior to the next Annual Dividend Payment Date, then release by the Holder REIT of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicableits quarterly earnings report.
Appears in 1 contract
Samples: Credit Agreement (Eldertrust)
Dividends. (a) Holders a. The holders of the issued and outstanding shares of Series AA Preferred Stock shall be entitled to receivereceive dividends on a pari passu basis with the holders of the Series BB Preferred Stock and the Series CC Preferred Stock at the rate of $0.3894 per share (as adjusted for any stock dividends, combinations or splits with respect to such shares) per annum payable out of the assets funds legally available therefor. The holders of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Series BB Preferred Stock shall be entitled to participate equally and ratably receive dividends on a pari passu basis with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Series AA Preferred Stock then outstanding were converted into shares and the Series CC Preferred Stock at the rate of Common Stock$0.0176 per share (as adjusted for any stock dividends, combinations or splits with respect to such shares) per annum payable out of funds legally available therefor. Dividends payable pursuant to this Section 4(a)(i) (The holders of the “Participating Dividends”) Series CC Preferred Stock shall be payable entitled to receive dividends on a pari passu basis with the same date that such dividends are payable to holders of shares the Series AA Preferred Stock and the Series BB Preferred Stock at the rate of Common Stock$0.0536 per share (as adjusted for any stock dividends, and no combinations or splits with respect to such shares) per annum payable out of funds legally available therefor. Such dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), ifonly when, as and when if declared by the Board of DirectorsDirectors (the “Board”) and shall be non-cumulative. No dividends (other than those payable solely in the Common Stock) shall be paid on any Common Stock during any fiscal year of the Corporation until dividends at the rate of (i) $0.3894 per share (as adjusted for any stock dividends, combinations or splits with respect to such shares) on the Series AA Preferred Stock, (ii) $0.0176 per share (as adjusted for any stock dividends, combinations or splits with respect to such shares) on the Series BB Preferred Stock and (iii) $0.0536 per share (as adjusted for any stock dividends, combinations or splits with respect to such shares) on the Series CC Preferred Stock shall have been paid or declared and set apart during that fiscal year.
b. If, after dividends in the full preferential amount specified in this Section 1 for the Preferred Stock have been paid or declared and set apart in full in any fiscal year of the Corporation, the Board shall declare additional dividends out of funds of the Corporation legally available therefortherefor in that fiscal year, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods then such additional dividends on each outstanding share of Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated shall be declared pro rata on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Common Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following on a Fundamental Transaction pursuant pari passu basis according to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock held by such holders, where each holder of shares of Preferred Stock is to be delivered treated for this purpose as holding the greatest whole number of shares of Common Stock then issuable upon conversion of all shares of Preferred Stock held by such holder pursuant to Section 5 hereof.
c. If the Corporation shall declare a distribution payable in securities of other persons, evidences of indebtedness issued by the Corporation or other persons, assets (excluding cash dividends) or options or rights to purchase any such securities or evidences of indebtedness, then, in each such case the holders of the Preferred Stock shall be determined by dividing entitled to a proportionate share of any such distribution on a pari passu basis as though the Dividend PIK Amount by holders of the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where Preferred Stock were the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) holders of the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, Corporation into which amount shall be calculated as (x) the total Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of their respective shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders are convertible as of Preferred Stock as they appear on the Register at the Close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date fixed for the payment determination of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions or acquisitions of shares of Junior Securities with respect to equity awards (including in connection with “cashless” or “net” exercises of Options, payment of the exercise or purchase price of Options, or to satisfy tax withholding obligations due as a result of the exercise of Options or delivery of equity awards) under any equity incentive plan or similar arrangements of the Corporation or its Subsidiaries) for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of entitled to receive such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable lawdistribution.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4(c), Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the Fundamental Transaction Date or Conversion Date, as applicable.
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Dividends. (a) Holders of the issued and outstanding shares of Preferred Stock shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:
(i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stockreceive, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock.
(ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, subject to Section 4(c), ifwhen, as and when if declared by the Board of Directors, out of funds of the Corporation Company legally available thereforfor payment, cumulative dividends at the Dividend Rate (“Dividends”). Dividends on each Annual the Preferred Stock shall be paid quarterly in arrears at the Dividend Payment Date for Rate in cash or, at the election of the Company, subject to receipt of any necessary Shareholder Approval (to the extent necessary), in Common Stock as provided pursuant to Section 4. For the avoidance of doubt, unless prohibited by applicable Payment Period or Payment Periods law, (i) the Board shall not fail to declare such Dividends on Preferred Stock and (ii) notwithstanding anything contained herein to the contrary, dividends on each outstanding share of the Preferred Stock (shall accrue for all fiscal periods during which the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 8.00% of the Liquidation Preference per share of Preferred Stock (is outstanding, regardless of whether the “Dividend Rate”), payable Company has earnings in accordance with Section 4(a)(iii) below. Subject to Section 4(c), Annual Dividends shall accrue and accumulate on a daily basis from the Issuance Date of any such shareperiod, whether or not declared and whether or not the Corporation has there are funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so whether or not such dividends are authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Issuance Date of such shareor declared. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Preferred Stock following a Fundamental Transaction pursuant to Section 7(g)(i), or upon any conversion of the Preferred Stock pursuant to Section 6(a)(i) or Section 6(a)(ii). Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).
(iii) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by delivery of shares of Common Stock, or (C) by delivery of any combination of cash and shares of Common Stock; provided that, if the Corporation elects to pay all or any part of the total amount of an Annual Dividend in shares of Common Stock (such amount with respect to any Annual Dividend Payment Date, the “Dividend PIK Amount”), the number of shares of Common Stock to be delivered shall be determined by dividing the Dividend PIK Amount by the 10-Day VWAP with respect to such Annual Dividend Payment Date; provided that, where the Corporation has determined in its sole discretion to pay a Dividend PIK Amount, if the 10-Day VWAP with respect to such Annual Dividend Payment Date is less than the Floor Price, (A) the number of shares of Common Stock that are permitted to be delivered in partial payment of the Dividend PIK Amount (the “Actual Dividend PIK Payment Shares”) shall be calculated by dividing (v) the Dividend PIK Amount by (w) the Floor Price and (B) the portion of the Annual Dividend that is not paid by delivery of the Actual Dividend PIK Payment Shares shall be payable in cash, which amount shall be calculated as (x) the total arrears on each Dividend PIK Amount less (y)(i) the product of the Actual Dividend PIK Payment Shares multiplied by (ii) the 10-Day VWAP.
(iv) Each Participating Dividend or Annual Dividend shall be paid pro rata Date to the Holders holders of shares of Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders record of Preferred Stock as they appear on the Register Company’s stock register at the Close close of Business business on the record date designated by relevant Dividend Record Date. Dividends payable for any period less than a full quarterly Dividend period (based upon the Board number of Directors for such dividends, which (idays elapsed during the period) with respect to Participating Dividends, shall be computed on the same basis of a 360-day as the record date year consisting of twelve 30-day months.
(b) No dividend shall be declared or paid upon, or any sum set apart for the payment of dividends to upon, any Outstanding share of the holders of shares of Common Preferred Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividendsany dividend period unless all dividends for all preceding dividend periods have been declared and paid, shall be not more than thirty (30) days nor less than ten (10) days preceding or declared and a sufficient sum has been set apart for the applicable Annual Dividend Payment Date (payment of such datedividend, an “Annual Dividend Payment Record Date”).
(b) Without the consent of the Holders representing at least a majority of the then-issued and outstanding upon all Outstanding shares of Preferred Stock, the Corporation shall not .
(ic) declare, pay or set aside for payment any No dividends or other distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases, redemptions a dividend or acquisitions of distribution payable solely in shares of Parity Stock or Junior Securities with respect to equity awards Stock (including in connection with “cashless” the case of Parity Stock) or “net” exercises Junior Stock (in the case of OptionsJunior Stock) and cash in lieu of fractional shares) may be declared, payment of the exercise made or purchase price of Optionspaid, or to satisfy tax withholding obligations due as a result of the exercise of Options set apart for payment upon, any Parity Stock or delivery of equity awards) under Junior Stock, nor may any equity incentive plan Parity Stock or similar arrangements of the Corporation Junior Stock be redeemed, purchased or its Subsidiaries) otherwise acquired for any consideration (or pay any moneys money paid to or make made available for a sinking fund for the redemption of any Parity Stock or Junior Stock) by the Company or on behalf of the Company (except by (i) conversion into or exchange for shares of such Parity Stock or Junior SecuritiesStock (in the case of Parity Stock) or Junior Stock (in the case of Junior Stock) and cash solely in lieu of fractional shares of Parity Stock or Junior Stock (in the case of Parity Stock) or Junior Stock (in the case of Parity Stock) and (ii) payments in connection with the satisfaction of employees’ tax withholding obligations pursuant to employee benefit plans or outstanding awards (and payment of any corresponding requisite amounts to the appropriate governmental authority), unless, in each case, unless all Accumulated Dividends (A) immediately before and after as of the taking date of such actiondeclaration, payment, redemption, purchase or acquisition) shall have been or contemporaneously are declared and paid in cash. Further, no Dividends or other distributions (other than a dividend or distribution payable solely in shares of Junior Stock and cash in lieu of fractional shares) may be declared, made or paid, or set apart for payment upon, any Junior Stock (except payments in connection with the fair value satisfaction of employees’ tax withholding obligations pursuant to employee benefit plans or outstanding awards (and payment of any corresponding requisite amounts to the appropriate governmental authority) unless the payment of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends dividend in respect of the Preferred Stock), (B) immediately after Stock for the taking of such action, the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable law.
(c) If the Fundamental Transaction Date or Conversion Date of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs most recent dividend period ending on or prior to the date of such declaration or payment has been declared and paid in cash or declared and a sum of cash sufficient for the payment thereof set aside for such payment. Notwithstanding the foregoing, if full dividends have not been paid on the Preferred Stock and any Parity Stock, dividends may be declared and paid on the Preferred Stock and such Parity Stock so long as the dividends are declared and paid pro rata so that the amounts of dividends declared per share on the Preferred Stock and such Parity Stock shall in all cases bear to each other the same ratio that accumulated and unpaid dividends per share on the shares of Preferred Stock and such Parity Stock bear to each other at the time of declaration.
(d) Holders of shares of Preferred Stock shall not be entitled to any dividend, whether payable in cash, property or stock, in excess of full cumulative dividends (it being understood that this Section 3(d) shall not limit the Company’s obligations pursuant to Section 3(a)).
(e) If any Dividend Payment Date falls on a day that is not a Business Day, the required payment will be on the next Annual succeeding Business Day and no interest or dividends on such payment will accrue or accumulate as the case may be, in respect of the delay.
(f) The holders of shares of Preferred Stock at the close of business on a Dividend Record Date shall be entitled to receive the dividend payment on those shares on the corresponding Dividend Payment Date notwithstanding the conversion of such shares in accordance with Sections 8 or 9 following such Dividend Record Date or the Company’s default in payment of the dividend due on such Dividend Payment Date. In the case of conversion of shares of Preferred Stock pursuant to Section 5 following the close of business on a Dividend Record Date but prior to the corresponding Dividend Payment Date, the holders of such shares shall not be entitled to receive the corresponding dividend payment following conversion (it being understood that the value thereof is included in the conversion terms set forth in Section 5).
(g) Notwithstanding anything herein to the contrary, to the extent that any Holder’s right to participate in any Dividend would result in the Holder exceeding the Beneficial Ownership Limitation, then the rights appurtenant to such Dividend to which such Holder of such share at is entitled pursuant hereto shall be limited to the Close of Business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related Fundamental Transaction or conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. same extent provided in Section 11 hereof.
(h) Except as provided in this Section 4(c)8, Annual Dividends the Company shall make no payment or allowance for unpaid dividends, whether or not in arrears, on any share converted shares of Preferred Stock will cease to accumulate from and after or for dividends on the Fundamental Transaction Date or Conversion Date, as applicableshares of Common Stock issued upon conversion.
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Samples: Subscription Agreement (Hennessy Capital Acquisition Corp II)