Common use of Dividends Clause in Contracts

Dividends. (a) Holders of shares of Series A Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.

Appears in 6 contracts

Samples: Purchase Agreement (Genco Shipping & Trading LTD), Purchase Agreement (Genco Shipping & Trading LTD), Purchase Agreement (Genco Shipping & Trading LTD)

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Dividends. (a) Holders The holders of shares of Series A the outstanding Class A-1 Preferred Stock shall be entitled to receive, out of funds legally available therefore, cumulative dividends on at the Series A annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock payable semiannually, which Stock. Such dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out payable in shares of the assets of the Company legally available thereforCompany’s Class A-1 Preferred Stock quarterly, and shall be payable semiannually commencing on the 180th fifteenth day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) of October, January, April and July (each of such date dates being referred to herein as a “Dividend Payment Date”) commencing on the date of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the rate per annum of 6% per share on the Liquidation Preference; provided that, Fair Market Value thereof. As used herein Fair Market Value shall mean in the event that case of stock on any a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends in respect of any previous quarterly dividend period shall not have been paid on, the Company is deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not permitted to declare bear interest. “Distribution” in this section 5 means the transfer of cash or pay such property without consideration, whether by way of dividend or incur such liability either otherwise (xexcept a dividend in shares of the Corporation) as a matter or the purchase or redemption of law shares of the Corporation for cash or property (y) under except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any loan agreementemployee incentive plan, credit agreementagreement or arrangement) including any such transfer, guaranty, purchase or related agreement, such dividend (redemption by a “Deferred Dividend”) shall not be declared by subsidiary of the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date)Corporation. The amount time of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis distribution by way of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in respect exchange for shares the time of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) distribution is the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with date when the foregoing paragraph and (ii) Corporation acquires the product of (A) the aggregate dividends payable per share of Common Stock shares in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertibleexchange. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the The Board of Directors or may fix a duly authorized committee thereof declares record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend payable declared thereon, which record date shall be no more than sixty (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a60) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legenddays.

Appears in 6 contracts

Samples: Conversion Agreement (Small World Kids Inc), Conversion Agreement (Small World Kids Inc), Conversion Agreement (Small World Kids Inc)

Dividends. (a) Holders of shares of Series A Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be when and as declared by the Board of Directors or a duly authorized committee thereof, either out of funds legally available therefor or through the assets issuance of shares of the Company legally available thereforCompany’s common stock, and the Company shall be payable semiannually accrue, quarterly in arrears on March 31, June 30, September 30, and December 31 of each year, commencing on the 180th day following the Issue earlier of December 31, 2008, or any Conversion Date (or as defined below), cumulative dividends on the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) Preferred Stock at the rate per annum share (as a percentage of 6% the Stated Value per share on share) equal to five percent (5%) per annum, payable in cash or shares of Common Stock (as defined in Section 7) at the Liquidation Preference; provided thatoption of the Holders. The Company may pay, in at its option, accrued dividends at any time while the event that on Preferred Stock remains outstanding. The Company shall pay all accrued and unpaid dividends within five (5) days following either (a) the conversion of any Dividend Payment Date, or all of the Preferred Stock or (b) the redemption by the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by all of the Board remaining outstanding shares of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date)Preferred Stock. The number of shares of Common Stock issuable as payment of dividends hereunder shall equal the aggregate dollar amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will then being paid, divided by the Conversion Price (as defined in Section 5(c)) then in effect. Dividends on the Preferred Stock shall be computed calculated on the basis of a 360-day year consisting year, shall accrue daily commencing the Issuance Date (as defined in Section 7), 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 twelve 30-day monthsthe Company legally available for the payment of dividends. Commencing The party that holds the Preferred Stock on an applicable record date for any dividend payment will be entitled to receive such dividend payment and following 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 Meeting End 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 then held by each Holder in proportion to the total number of shares of Preferred Stock then outstanding. In order for the Holders to exercise the right to have dividends paid in cash on any Conversion Date, the Holders must indicate such intention in the event Conversion Notice, which notice will remain in effect for subsequent Conversion Notices until rescinded by the Holder in a written notice to such effect that dividends are paid on is addressed to the Company. (b) Notwithstanding anything to the contrary contained herein, the Company may not issue shares of Common Stock in any dividend period with respect to payment of dividends on the Series A Preferred Stock, then a dividend shall be payable Stock (and must deliver cash in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of thereof) if: (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is either insufficient to issue such dividends in shares of Common Stock or the Company has not duly reserved for issuance in respect of such dividends a sufficient number of shares of Common Stock, (ii) such shares are not listed for trading on the Nasdaq SmallCap Market or the OTC Bulletin Board ("OTC BB")(and any other exchange, market or trading facility in which such share of Series A Preferred the Common Stock is then convertiblelisted for trading). For purposes Payment of this dividends in shares of Common Stock is further subject to the provisions of Section 3(a5. (c) So long as any shares of Preferred Stock remain outstanding, neither the Company nor any subsidiary thereof shall, without the consent of the Holders of seventy five percent (75%) of the shares of Preferred Stock then outstanding, redeem, repurchase or otherwise acquire directly or indirectly any Junior Securities (as defined in Section 7), a nor shall the Company directly or indirectly pay or declare any dividend period with or make any distribution upon, nor shall any distribution be made in respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (orof, if there is no preceding Dividend Payment Dateany Junior Securities, the Issue Date) and ending on the day immediately prior nor shall any monies be set aside for or applied to the next Dividend Payment Date. Dividends payable on purchase or redemption (through a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors sinking fund or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(aotherwise) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendJunior Securities.

Appears in 5 contracts

Samples: Securities Purchase Agreement (Technest Holdings Inc), Securities Purchase Agreement (Technest Holdings Inc), Securities Purchase Agreement (Technest Holdings Inc)

Dividends. (aA) Holders The holders of shares of the Series A Preferred Stock are entitled to receive, when, as and if authorized by the Board (or a duly authorized committee thereof), out of funds of the Corporation legally available for the payment of dividends, cumulative preferential dividends at the rate of the Yield, payable only in additional shares of Series A Preferred Stock; provided, that (i) in the event of a Breach other than a Breach due to a failure to redeem Series A Preferred Stock in accordance with Section 9 (Optional Redemption by Holders), the dividend rate of the Series A Preferred Stock shall increase by an increment of 2% per annum (such increment payable solely in U.S. dollars), which amount shall compound quarterly and accrue on a daily basis during the period starting from the date of occurrence through and including the date that the Breach is cured or (ii) in the event of a Breach due to a failure to redeem Series A Preferred Stock in accordance with Section 9 (Optional Redemption by Holders), the holders of such remaining unredeemed shares of Series A Preferred Stock shall be entitled to cumulative the Additional Payment. For the avoidance of doubt, the holders of the Series A Preferred Stock shall be entitled only to a single 2% per annum dividend rate increase during the continuance of any one or more Breaches subject to clause (i) and the holders of the Series A Preferred Stock whose shares of Series A Preferred Stock were to be redeemed on the Redemption Date, but were not, shall be entitled to only a single Additional Payment during the continuance of a Breach subject to clause (ii). (B) To the extent that dividends on the Series A Preferred Stock payable semiannuallyhave not been declared and paid, which such dividends shall be declared by cumulative and compound quarterly at the Board of Directors Yield from the most recent date to which dividends have been paid, or a duly authorized committee thereofif no dividends have been paid, out of from the assets of the Company legally available therefor, Issue Date and shall be payable semiannually commencing quarterly in arrears on the 180th day following the Issue Date (or the following Business Day January 15, April 15, July 15 and October 15 of each year or, if any such payment date is not a Business Day) , the next succeeding Business Day commencing [ ], 201[ ] (each such date being referred to herein as each, a “Dividend Payment Date”) at in the rate per annum form of 6% per share additional shares of Series A Preferred Stock, as calculated based on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either Preference (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability other than amounts in respect of such Deferred Dividend (andBreaches as described in Section 5(A), for the avoidance of doubt, such Deferred Dividend which shall be payable paid in addition to, and not in lieu of, any U.S. dollars). Any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable the Series A Preferred Stock for any other period that is shorter or longer than a full semiannual partial dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares Dividends will be payable to holders of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable Stock as they appear in respect the stock records of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on Corporation at the close of business on the day on applicable record date, which shall be the date set by the Board or, if not set, the last day of Directors or a duly authorized committee thereof declares the dividend payable calendar month immediately preceding the applicable Dividend Payment Date (each, a “Dividend Record Date”). (C) No dividends on shares of the Series A Preferred Stock shall be authorized by the Board or declared by the Corporation or paid or set apart for payment by the Corporation if such declaration or payment would be prohibited by law. (D) Notwithstanding the foregoing Section 5(C), dividends on the Series A Preferred Stock will accrue daily whether or not the Corporation has earnings, whether or not there are funds legally available for the payment of such dividends and whether or not such dividends are declared or set aside. Notwithstanding anything Accrued but unpaid dividends on the Series A Preferred Stock will not bear interest and holders of the Series A Preferred Stock will not be entitled to any dividends in this excess of the full cumulative and compounded dividends described above. Any dividend payment made on the Series A Preferred Stock shall first be credited against the earliest accumulated but unpaid dividend due with respect to such shares that remains payable. (E) If, for any taxable year, the Corporation elects to designate as “capital gain dividends” (as defined in Section 3(a857 of the Internal Revenue Code of 1986, as amended (the “Code”)) any portion (the “Capital Gains Amount”) of the dividends (as determined for federal income tax purposes) paid or made available for the year to holders of all classes of stock (the “Total Dividends”), then the portion of the Capital Gains Amount that shall be allocable to the contrary, and without limiting any other remedy holders of the Series A Preferred Stock shall be the amount that the total dividends (as determined for federal income tax purposes) paid or made available to the Company holders of the Series A Preferred Stock for the year bears to the Total Dividends. The Corporation will make a similar allocation for each taxable year with respect to any undistributed long-term capital gains of the Corporation that are to be included in its stockholders’ long-term capital gains, based on the allocation of the Capital Gains Amount that would have resulted if such undistributed long-term capital gains had been distributed as “capital gains dividends” by the Corporation to its stockholders. (F) No dividends or other distributions (other than a dividend or distribution payable solely in shares of Junior Stock or cash in lieu of fractional shares) will be declared, made or paid or set apart for payment on any Junior Stock, nor may any Junior Stock be redeemed, purchased or otherwise acquired for any consideration (other partythan repurchases pursuant to binding contractual commitments of Junior Stock held by employees, dividends shall not accrue directors or be payable in respect consultants upon termination of their employment or services) by the Corporation or on its behalf (except by conversion of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company Series A Preferred Stock into or exchange for shares of Junior Stock) unless dividends are simultaneously declared on the Series A Preferred Stock, and full Accrued Dividends and Accumulated Dividends have been or contemporaneously are declared and paid, or declared and a sum sufficient for the payment thereof is set apart for such payment on the Series A Preferred Stock for all dividend periods ending on or prior to the date of such declaration, payment, redemption, purchase or acquisition; provided, that the foregoing restriction will not limit the acquisition of shares of Common Stock or the declaration or payment of cash dividends on Common Stock solely to the extent necessary to preserve the Corporation’s qualification as a REIT. (G) The holders of the Series A 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 following that Dividend Record Date or the Corporation’s default in order to effect payment of the Stockholder Approval dividend due on that Dividend Payment Date. A holder of Series A Preferred Stock on a Dividend Record Date that surrenders (or whose transferor Holder was so obligatedtransferee surrenders) if any shares for conversion on the corresponding Dividend Payment Date shall receive the dividend payable by the Corporation on the Series A Preferred Stock on that date, and the converting holder need not include payment in the amount of such Holder (or such transferor Holder or dividend upon surrender of shares of the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendSeries A Preferred Stock for conversion.

Appears in 5 contracts

Samples: Restructuring Support and Forbearance Agreement (CAESARS ENTERTAINMENT Corp), Restructuring Support and Forbearance Agreement (CAESARS ENTERTAINMENT Corp), Restructuring Support and Forbearance Agreement (CAESARS ENTERTAINMENT Corp)

Dividends. (a) Holders of shares of Series A Preferred Stock shall be entitled Subject to cumulative dividends its ability to do so under applicable law, the Buyer agrees to pay the First Year Dividend to its shareholders on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available thereforFirst Anniversary. (b) The Seller shall, and shall be payable semiannually commencing on cause each other Registrable Securities Holder holding Dividend Waiver Securities to, enter into a Dividend Waiver Agreement as required under Section 3(c)(ii) hereof. (c) EIAC and the 180th day following Buyer shall cause the Issue Date Initial Stockholders, the directors and officers of EIAC and their respective Affiliates holding Dividend Waiver Securities to enter into a Dividend Waiver Agreement as required under Section 3(c)(ii) hereof. (d) Subject to the restrictions contained in Section 6(h), a Person described in Section 7(b) or the following Business Day if any such payment date is not a Business Day(c) may: (each such date being referred to herein as a “Dividend Payment Date”i) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on sell any Dividend Payment DateWaiver Securities to an unrelated third party free of any restrictions imposed by a Dividend Waiver Agreement, the Company is not permitted and upon such sale, and pursuant to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreementthe Dividend Escrow Agreement, credit agreementif applicable, guaranty, or related agreement, the Escrow Agent shall release such dividend (a “Deferred Dividend”) Dividend Waiver Securities from escrow upon receipt by it of the agreed consideration therefor and shall not pay to the seller the amount of the consideration received less such amount as would be declared by necessary to pay the Board of Directors, shall not be paid or payable First Year Dividend on such Dividend Payment Date and no liability Waiver Securities, which amount shall be incurred retained by the Escrow Agent and held in respect thereof, escrow pursuant to the terms of the Dividend Escrow Agreement. Any amounts deposited in escrow pursuant to this paragraph and instead, such Deferred not used to pay the First Year Dividend shall be declaredrefunded, become payable and be paid and together with any interest accrued thereon, to such seller upon the liability in respect thereof be incurred on payment of the first succeeding Dividend Payment Date on which the Company is not prohibited from declaringFirst Year Dividend; and (ii) exercise any warrants, paying and incurring the liability rights or other options in respect of such Deferred any Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition toWaiver Securities, and not in lieu ofupon notifying the Escrow Agent of such exercise the Escrow Agent shall promptly take all such steps as are necessary to exercise such warrants, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any rights or other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable options in respect of each share any Dividend Waiver Securities, provided that any shares of Series A Preferred Buyer Common Stock for issuable upon any such period in an amount equal exercise shall remain subject to the greater applicable Dividend Waiver Agreement and shall be held in escrow by the Escrow Agent and pursuant to the terms of the Dividend Escrow Agreement. (ie) The Buyer shall be obligated and agrees to pay any and all expenses of the amount otherwise payable Escrow Agent in respect of such share of Series A Preferred Stock in accordance connection with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendEscrow Agreement.

Appears in 4 contracts

Samples: Share Purchase Agreement (Energy Infrastructure Acquisition Corp.), Share Purchase Agreement (Energy Infrastructure Acquisition Corp.), Share Purchase Agreement (Energy Infrastructure Merger CORP)

Dividends. (a) Holders of the issued and outstanding shares of Series A Preferred Stock shall be entitled to cumulative receive, out of assets legally available for the payment of dividends, dividends on the Series A 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 (including any Excess Conversion Shares and disregarding for this purpose the last sentence of Section 6(a)(i)(B)). Dividends payable semiannuallypursuant 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, which and no dividends shall be declared payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the Board of Directors or a duly authorized committee thereof, out same time to the Holders of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date Preferred Stock. (or the following Business Day if ii) In addition to any such payment date is not a Business Day) (each such date being referred dividends pursuant to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment DateSection 4(a)(i), the Company is not permitted to declare or pay such dividend or incur such liability either (x) Corporation shall pay, if, as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be and when declared by the Board of Directors, shall not be paid or payable out of funds legally available therefor, on such each Preferred Dividend Payment Date dividends on each outstanding share of Preferred Stock (the “Preferred Dividends”) at a rate per annum equal to the Dividend Rate as further specified in this Section 4(a)(ii) and no liability in accordance with Section 4(a)(iii) below. Preferred Dividends on each share of Preferred Stock 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, shall compound quarterly on each Preferred Dividend Payment Date (to the extent not paid on such Preferred Dividend Payment Date) and shall be incurred payable quarterly in respect thereofarrears, if, as and insteadwhen so authorized and declared by the Board of Directors, such Deferred on each Preferred Dividend shall be declaredPayment Date, become payable and be paid and the liability in respect thereof be incurred commencing on the first succeeding Preferred Dividend Payment Date on which following the Company is not prohibited from declaring, paying and incurring the liability in respect Issuance Date of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date)share. The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period Preferred Dividends accruing with respect to the Series A any share of Preferred Stock, then a dividend Stock for any day shall be payable determined by dividing (x) the Implied Quarterly Dividend Amount as of such day by (y) the actual number of days in the applicable Payment Period; provided that if, during any current Payment Period, Accrued Dividends are paid in respect of each one or more prior Payment Periods, then after the date of such payment, the amount of Preferred Dividends accruing with respect to any share of Series A Preferred Stock for such period in an amount equal to the greater of any day shall be determined by dividing (ix) the Implied Quarterly Dividend Amount (recalculated to take into account such payment of Accrued Dividends) by (y) the actual number of days in such current Payment Period. The amount otherwise of Preferred Dividends payable in with respect of such to any share of Series A Preferred Stock for any Payment Period shall equal the sum of the Preferred Dividends accrued in accordance with the foregoing paragraph prior sentence of this Section 4(a)(ii) with respect to such share during such Payment Period. Preferred Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (iiwith $.005 being rounded upward). (iii) The Preferred Dividends may, at the product option of the Corporation, be paid in cash or by issuing fully paid and nonassessable shares of Preferred Stock; provided that (A) Preferred Dividends paid on any date shall be paid by issuing fully paid and nonassessable shares of Preferred Stock to the aggregate dividends payable per share extent payment in cash on such date would be prohibited under the terms, conditions or provisions of Common Stock in such dividend period times any of the Debt Financing Documents and (B) any Base Amount Accrued Dividends shall be paid by issuing fully paid and nonassessable shares of Preferred Stock; and provided further that, if the Corporation elects to pay any Preferred Dividends in shares of Preferred Stock with respect to any Payment Period, the Corporation shall make the same election with respect to all Preferred Dividends paid with respect to such Payment Period. If the Corporation pays any Preferred Dividend in shares of Preferred Stock, the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertibleto be paid in respect of such Preferred Dividend will be equal to the number of shares (including fractional shares) that have an aggregate Liquidation Preference equal to the amount of such Preferred Dividend. (iv) Each Participating Dividend or Preferred Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. For purposes Each Participating Dividend or Preferred Dividend shall be payable to the Holders of this Section 3(aPreferred 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 (each such date, a “Dividend Payment Record Date”), a dividend period which (i) with respect to a Dividend Payment Date is Participating Dividends, shall be the period commencing on same day as the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, record date for the Issue Date) and ending on the day immediately prior payment of dividends to the next holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Preferred Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Preferred Dividend Payment Date. Notwithstanding the foregoing, but subject to the proviso in the first sentence of Section 4(a)(iii), the Base Amount Accrued Dividends payable on a Dividend Payment Date shall may be payable declared and paid in cash or in shares of Preferred Stock at any time to Holders of record on the close Dividend Payment Record Date therefor. (b) Upon the occurrence of business on a Triggering Event, the day Dividend Rate shall increase by the Noncompliance Additional Rate from and including the date on which the Board of Directors or a duly authorized committee thereof declares Triggering Event shall occur and be continuing through but excluding the dividend payable (each, a “date on which all then occurring Triggering Events are no longer continuing. The Dividend Record Date”). Notwithstanding anything in Rate shall not be increased further pursuant to this Section 3(a4(b) for a subsequent Triggering Event occurring while the Dividend Rate is already increased pursuant to this Section 4(b). (c) At any time during which a Triggering Event shall be occurring, without the contraryconsent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, and without limiting any other remedy available to the Company or any other party, 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 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). (d) 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 accrue (i) declare, pay or be payable in respect 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 of shares initially issued of Common Stock from employees, officers or directors of the Corporation in the ordinary course of business) for any Holder who is contractually obligated to appear and vote in favor consideration or pay any moneys or make available for a sinking fund for the redemption of any proposal made at a meeting shares of stockholders such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Company 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 order its good faith judgment, would be able to effect pay all of its debts (including the Stockholder Approval aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (or whose transferor Holder was so obligatedC) if such Holder action is otherwise in compliance with applicable Law. (or such transferor Holder or e) For the Affiliates avoidance of eitherdoubt, the consequences described in Sections 4(b), (c) fails so to appear and vote (d) above shall constitute the sole and exclusive remedies of the Holders upon the occurrence of the Triggering Event described in favor. Any shares issued to such Holders shall bear clause (vii) of the Stockholder Approval Legenddefinition thereof.

Appears in 4 contracts

Samples: Investment Agreement, Registration Rights Agreement (Beacon Roofing Supply Inc), Registration Rights Agreement (CD&R Boulder Holdings, L.P.)

Dividends. (a) Holders of shares of Series A Preferred Stock shall be entitled Subject to cumulative dividends on sub-clause (b) below, the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available thereforParent will not, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if will not permit any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided thatits Subsidiaries to, in the event that on any Dividend Payment Dateauthorize, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period Dividends with respect to the Series A Preferred StockParent or any of its Subsidiaries, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of except that: (i) Subsidiaries of the amount otherwise Parent may pay Dividends to another member of the NCLC Group; provided that the Borrower shall procure that any Dividends or other distributions and interest paid or payable in respect connection with such Dividends or other distributions to NCL International Ltd., NCL America Holdings, LLC or Arrasas Limited shall be received promptly by the Parent directly or indirectly by way of such share of Series A Preferred Stock in accordance with the foregoing paragraph and Dividend; (ii) the product Parent may pay Dividends in respect of (A) the aggregate dividends payable per share tax liability to each relevant jurisdiction in respect of Common consolidated, combined, unitary or affiliated tax returns for each relevant jurisdiction of the NCLC Group or holder of the Parent’s Capital Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to income taxable as a Dividend Payment Date is result of any member of the NCLC Group being taxed as a pass-through entity for U.S. Federal, state and local income tax purposes or attributable to any member of the NCLC Group; and (iii) at any time following the listing of the ordinary Capital Stock of the Parent (or parent company of the Parent) on an Approved Stock Exchange, the Parent may pay Dividends in an amount not to exceed 50% of Consolidated Net Income of the Parent and its Subsidiaries for the period (taken as one period) commencing on the preceding Dividend Payment Date (orJanuary 1, if there is no preceding Dividend Payment Date, the Issue Date) 2010 and ending on the day immediately date prior to such Dividend for which financial statements are available so long as (x) no Default or Event or Default exists or would result from such Dividend and (y) at the next time of such Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable and after giving effect thereto the ratio of Total Net Funded Debt to Holders of record on Consolidated EBITDA for the close of business on the day on four consecutive fiscal quarters last ended for which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) financial statements have been provided to the contrary, and without limiting any other remedy available Facility Agent pursuant to the Company or any other party, dividends Section 9.01 is less than 5.50:1.00. (b) The Parent shall not accrue authorize, declare or be payable pay any Dividends between April 1, 2020 and the latest Maturity Date in respect of shares initially issued the Deferred Loans, provided that any Holder who is contractually obligated to appear and vote breach of this sub-clause shall not result in favor an Event of any proposal made at Default but will instead result in a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendmandatory prepayment event under Section 4.02(d).

Appears in 4 contracts

Samples: Loan Agreement (Norwegian Cruise Line Holdings Ltd.), Loan Agreement (Norwegian Cruise Line Holdings Ltd.), Loan Agreement (Norwegian Cruise Line Holdings Ltd.)

Dividends. (a) Holders of So long as any shares of Series A Preferred Stock shall be outstanding, the holders of such Preferred Stock shall be entitled to cumulative receive out of any funds legally available therefor, preferential dividends at the Dividend Rate on the Series A Preferred Stock Liquidation Preference hereunder, payable semiannually, which quarterly on the last Business Day of each calendar quarter. Such dividends shall be cumulative and begin to accrue from the Original Issue Date, whether or not declared by the Board of Directors and whether or a duly authorized committee thereof, out of the not there shall be net profits or net assets of the Company legally available therefor, and shall for the payment of those dividends. (b) The dividend will be payable semiannually commencing on (i) prior to the 180th day following effective date of a Chapter 11 plan of reorganization with respect to the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided thatCompany, in the event that on any Dividend Payment Dateform of additional shares of Preferred Stock having a Liquidation Preference equal to such dividend amount, or (ii) following the effective date of a Chapter 11 plan of reorganization with respect to the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under and at the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End DateCompany's election, in the event that dividends are paid on cash or in shares of Common Stock in having an Appraised Value equal to such cash dividend payment. (c) So long as any dividend period with respect to the Series A shares of Preferred Stock, then a dividend Stock shall be payable outstanding, (i) no dividend whatsoever shall be paid or declared, and no distribution shall be made, on account of any Common Stock until all dividends in respect of each share of Series A the Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable all past and current dividend periods have been paid and all amounts in respect of such share the redemption of Series A Preferred Stock in accordance with the foregoing paragraph pursuant to Section 6 have been paid, and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of no shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors purchased, redeemed or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to acquired by the Company and no funds shall be paid into or any other partyset aside or made available for a sinking fund for the purchase, redemption or acquisition thereof until all dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear the Preferred Stock for all past and vote current dividend periods have been paid and all amounts in favor of any proposal made at a meeting of stockholders respect of the Company in order redemption of Preferred Stock pursuant to effect Section 6 have been paid. (d) Notwithstanding anything to the Stockholder Approval (contrary contained herein, if, on any date, an Event of Default shall have occurred and be continuing, whether or whose transferor Holder was so obligated) if not by reason of the absence of legally available funds therefor, then the Dividend Rate on the shares of Preferred Stock shall be increased to a compound annual rate of 16%, for as long as such Holder (or such transferor Holder or the Affiliates Event of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendDefault is continuing.

Appears in 4 contracts

Samples: Exchange Agreement (Goldman Sachs Group Inc/), Exchange Agreement (Coram Healthcare Corp), Exchange Agreement (Coram Healthcare Corp)

Dividends. (a) Holders of shares Each Holder of Series A Preferred Stock shall be entitled to cumulative receive, when, as and if declared by the Board of Directors, out of funds legally available therefor, cash dividends on the each share of Series A Preferred Stock at a rate per annum equal to 13.0% of the Liquidation Preference of such share. All dividends shall be cumulative, whether or not earned or declared, and shall accrue on a daily basis from the date of issuance of Series A Preferred Stock, and shall be payable semiannuallyannually in arrears on each Dividend Payment Date, commencing on the first Dividend Payment Date after the date of issuance of such Series A Preferred Stock. Each dividend on Series A Preferred Stock shall be payable to the Holders of record of Series A Preferred Stock as they appear on the stock register of the Corporation on such record date as may be fixed by the Board of Directors, which record date shall not be less than ten nor more than 60 days prior to the applicable Dividend Payment Date. In the event of the repurchase of any shares of Series A Preferred Stock, dividends shall cease to accrue in respect of shares of Series A Preferred Stock on the date of their repurchase by the Corporation unless the Corporation shall have failed to pay the relevant repurchase price on the date fixed for repurchase. Notwithstanding anything to the contrary set forth above, unless and until such dividends are declared by the Board of Directors, there shall be no obligation to pay such dividends in cash; provided, that such dividends shall continue to cumulate and shall be paid at the time of repurchase, in the event of their repurchase, as provided herein if not earlier declared and paid. (b) All dividends paid with respect to shares of Series A Preferred Stock pursuant to paragraph A(3)(a) shall be paid pro rata to the Holders entitled thereto. (c) Dividends on account of arrears for any past Dividend Period may be declared and paid at any time, without reference to any regular Dividend Payment Date, to the Holders of record on any date as may be fixed by the Board of Directors, which date is not more than 30 days prior to the payment of such dividends. (d) No full dividends shall be declared by the Board of Directors or paid or funds set apart for the payment of dividends or other distributions on any Series A Parity Securities for any period, and no Series A Parity Securities may be repurchased, redeemed or otherwise retired, nor may funds be set apart for such payment, unless (i) full Accumulated Dividends have been paid or set apart for such payment on the Series A Preferred Stock and Series A Parity Securities for all Dividend Periods terminating on or prior to the date of payment of such full dividends or distributions on, or such repurchase or redemption of, such Series A Parity Securities (the "Series A Parity Payment Date") and (ii) an amount equal to a duly authorized committee thereof, out prorated dividend on the Series A Preferred Stock and Series A Parity Securities at the customary dividend rates for such securities for the period from the Dividend Payment Date immediately prior to the Series A Parity Payment Date to the Series A Parity Payment Date have been paid or set apart for payment. In the event that such dividends are not paid in full or set apart for payment with respect to all outstanding shares of Series A Preferred Stock and of any Series A Parity Securities and funds available for payment of dividends shall be insufficient to permit payment in full to the holders of all such stock of the assets full preferential amounts to which they are then entitled, then the entire amount available for payment of dividends shall be distributed ratably among all such holders of Series A Preferred Stock and of any Series A Parity Securities in proportion to the full amount to which they would otherwise be respectively entitled. (e) The Holders of Series A Preferred Stock shall be entitled to receive the dividends provided for in paragraph A(3)(a) hereof in preference to and in priority over any dividends upon any of the Company legally available thereforSeries A Junior Securities, so that if at any time full Accumulated Dividends on all shares of Series A Preferred Stock then outstanding have not been paid for all Dividend Periods then elapsed and shall be payable semiannually commencing a prorated dividend on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) Series A Preferred Stock at the rate per annum of 6% per share on aforesaid from the Liquidation Preference; provided that, in the event that on any Dividend Payment DateDate immediately preceding the Series A Junior Payment Date (as defined below) to the Series A Junior Payment Date have not been paid or set aside for payment, the Company is not permitted amount of such unpaid dividends shall be paid before any sum shall be set aside for or applied by the Corporation to declare the purchase, redemption or pay such other acquisition for value of any shares of Series A Junior Securities (either pursuant to any applicable sinking fund requirement or otherwise) or any dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) other distribution shall not be declared by the Board of Directors, shall not be paid or payable declared and set apart for payment on any Series A Junior Securities (the date of any such Dividend actions to be referred to as the "Series A Junior Payment Date Date"); provided, however, that the foregoing shall not (i) prohibit the Corporation from repurchasing shares of Series A Junior Securities from a Holder who is, or was, a director or employee of the Corporation (or an affiliate of the Corporation) and no liability shall be incurred in respect thereof(ii) prohibit the Corporation from making dividends, and insteadother distributions, such Deferred Dividend shall be declaredredemptions, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability repurchases or acquisitions in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be Series A Junior Securities payable in addition to, Series A Junior Securities and not cash in lieu of, any dividend which would ordinarily be of fractional shares of such Series A Junior Securities. (f) Dividends payable on such succeeding Dividend Payment Date). The amount of dividends payable Series A Preferred Stock for any other period that is shorter or longer less than a full semiannual dividend period will one year shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on months and following the Meeting End Date, actual number of days elapsed in the event that period for which such dividends are payable. (g) The Corporation shall not claim any deduction from gross income for dividends paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with any Federal income tax return, claim for refund, or other statement, report or submission made to the Internal Revenue Service, and shall make any election or take any similar action to effectuate the foregoing paragraph except, in each case, if there shall be a change in law such that the Corporation may claim such dividends as deductions from gross income without affecting the ability of the Holders to claim the dividends received deduction under Section 243(a)(1) of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor provision). At the reasonable request of any Holder (and (ii) at the product expense of (A) such Holder), the aggregate Corporation shall join in the submission to the Internal Revenue Service of a request for a ruling that the dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of paid on Series A Preferred Stock is then convertibleshall be eligible for the dividends received deduction under Section 243(a) (1) of the Code (or any successor provision). For purposes In addition, the Corporation shall cooperate with any Holder (at the expense of such Holder) in any litigation, appeal or other proceeding relating to the eligibility for the dividends received deduction under Section 243(a)(l) of the Code (or any successor provision) of any dividends (within the meaning of Section 316(a) of the Code or any successor provision) paid on Series A Preferred Stock. To the extent possible, the principles of this Section 3(a), a dividend period paragraph A(3)(g) shall also apply with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) state and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendlocal income taxes.

Appears in 4 contracts

Samples: Securities Purchase and Contribution Agreement (Il Fornaio America Corp), Securities Purchase and Contribution Agreement (Hislop Michael J), Securities Purchase and Contribution Agreement (Mindel Laurence B)

Dividends. (a) Subject to the rights of holders of Senior Stock, Holders shall be entitled to receive, when, as and if declared by the Board out of funds of the Corporation legally available for payment, cumulative dividends at the Dividend Rate, payable in cash, by delivery of shares of Series A Preferred Stock shall be entitled or through any combination of cash and shares of Series A Preferred Stock at the Corporation’s sole election, as provided pursuant to cumulative dividends Section 4. Dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by payable quarterly in arrears at the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available thereforDividend Rate, and shall be payable semiannually commencing accumulate on a daily basis from the 180th day following most recent date as to which dividends have been paid, or, if no dividends have been paid, from the Initial Issue Date (whether or not (i) in any dividend period or periods any agreements of the following Business Day if any Corporation prohibit the current payment of dividends, (ii) there shall be earnings or funds of the Corporation legally available for the payment of such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law dividends or (yiii) under the terms Corporation declares the payment of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) dividends). Dividends shall not be declared by the Board of Directors, shall not be paid or payable quarterly in arrears on such each Dividend Payment Date and no liability shall be incurred in respect thereof(commencing on [●], and instead, such Deferred Dividend shall be declared, become payable and be paid and 2017) to the liability in respect thereof be incurred Holders as they appear on the first succeeding Corporation’s stock register at the Close of Business on the relevant Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Record Date). The amount of dividends Dividends payable for any other period that is shorter or longer less than a full semiannual quarterly dividend period will (based upon the number of days elapsed during the period) shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing . (b) If any Dividend Payment Date falls on a day that is not a Business Day, the required payment will be made on the next succeeding Business Day and following no interest or dividends on such payment will accrue or accumulate, as the Meeting End Datecase may be, in respect of the event that delay. (c) No dividend shall be declared or paid upon, or any sum of cash set apart for the payment of dividends are paid on shares upon, any outstanding share of Common Stock in any dividend period with respect to the Series A Preferred Stock with respect to any dividend period unless all accumulated dividends for all preceding dividend periods have been declared and paid upon, or a sufficient sum in cash or number of shares of Series A Preferred Stock have been set apart for the payment of such dividends upon, all outstanding shares of Series A Preferred Stock. (d) So long as any shares of Series A Preferred Stock remain outstanding, no dividends or other distributions (other than (x) in the case of Parity Stock, then a dividend shall or distribution payable solely in shares of Parity Stock or Junior Stock, (y) in the case of Junior Stock, a dividend or distribution payable solely in shares of Junior Stock and (z) cash in lieu of fractional shares) may be payable declared, made or paid upon, or set apart for payment upon, any Parity Stock or Junior Stock, nor may any Parity Stock or Junior Stock be redeemed, purchased or otherwise acquired for any consideration (or any money paid to or 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 or by any of the Corporation’s Subsidiaries, unless all accumulated and unpaid dividends for all preceding dividend periods have been or contemporaneously are declared and paid in respect full on, or a sufficient sum of each share cash or number of shares of Series A Preferred Stock for the payment thereof is set apart for such period in an amount equal dividends upon, the Series A Preferred Stock and any Parity Stock for all dividend payment periods ending on or prior to the greater date of such declaration, payment, redemption, purchase or acquisition. The foregoing limitation shall not apply to: (i) conversions into or exchanges for, (A) in the amount otherwise payable case of Parity Stock, shares of Parity Stock or Junior Stock or cash solely in respect lieu of fractional shares of Parity Stock or Junior Stock, and, (B) in the case of Junior Stock, shares of Junior Stock or cash solely in lieu of fractional shares of Junior Stock; (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); (iii) purchases, redemptions or other acquisitions of Parity Stock or Junior Stock in connection with the administration of any benefit or other incentive plan, including any employment contract, in the ordinary course of business; (iv) any dividends or distributions of rights in connection with a stockholders’ rights plan or any redemption or repurchase of rights pursuant to any stockholders’ rights plan; or (v) the deemed purchase or acquisition of fractional interests in shares of Parity Stock or Junior Stock pursuant to the conversion or exchange provisions of such Parity Stock or Junior Stock or the security being converted or exchanged. Notwithstanding the foregoing, if full dividends have not been paid on the Series A Preferred Stock and any Parity Stock, dividends may be declared and paid on the Series A 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 shares of Series A Preferred Stock and shares of such Parity Stock shall in accordance with all cases bear to each other the foregoing paragraph same ratio that accumulated and (ii) the product of (A) the aggregate unpaid dividends payable per share of Common Stock in such dividend period times (Bwhether or not declared) on the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes and shares of this Section 3(a)such Parity Stock bear to each other, a in proportion to their respective liquidation preferences. (e) Holders of shares of Series A Preferred Stock shall not be entitled to any dividend period with respect to in excess of full cumulative dividends. (f) Holders at the Close of Business on a Dividend Payment Record Date is shall be entitled to receive, when, as and if declared by the period commencing Board, out of funds legally available for payment, the dividend payment on their respective shares of Series A Preferred Stock on the preceding Dividend Payment Date (or, if there is no preceding corresponding Dividend Payment Date; provided, however, that shares of Series A Preferred Stock surrendered for conversion during the Issue Date) period between the Close of Business on any Dividend Record Date and ending the Close of Business on the day immediately prior Conversion Date or the Mandatory Conversion Date, as applicable, shall only be entitled to the next Dividend Payment dividends accrued and unpaid through the Conversion Date or the Mandatory Conversion Date. Dividends , respectively. (g) Subject to the foregoing, such dividends (payable on a Dividend Payment Date shall in cash, securities or other property) as may be payable to Holders of record on the close of business on the day on which determined by the Board may be declared and paid on any of Directors or a duly authorized committee thereof declares the dividend payable (eachCorporation’s securities, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) including Common Stock, from time to the contrarytime out of funds legally available for such payment, and without limiting any other remedy available to the Company or any other party, dividends Holders shall not accrue or be payable entitled to participate in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legenddividends.

Appears in 4 contracts

Samples: Subscription Agreement (KLR Energy Acquisition Corp.), Subscription Agreement (KLR Energy Acquisition Corp.), Subscription Agreement (KLR Energy Acquisition Corp.)

Dividends. The Parent and the Borrower will not, nor will they permit any Subsidiary to, declare or pay any dividend or make any distribution on its capital stock (other than dividends payable in its own capital stock) or redeem, repurchase or otherwise acquire or retire any of its capital stock at any time outstanding, except that (i) any Subsidiary of the Borrower may declare and pay dividends or make distributions to the Borrower or to any other Subsidiary of the Borrower, (ii) any Subsidiary of the Borrower which is not a Wholly-Owned Subsidiary may pay dividends to its shareholders generally so long as the 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, (iii) the Borrower may declare and make dividends or distributions to the Parent to enable the Parent to, and the Parent may (a) Holders pay any income, franchise or like taxes, (b) pay its operating expenses (including, without limitation, legal, accounting, reporting, listing and similar expenses) in an aggregate amount not exceeding $5,000,000 in any fiscal year (excluding in any event non-cash charges related to employee compensation or compensation to non-executive members of shares the Parent’s board of Series A Preferred Stock directors) and (c) so long as no Default or Unmatured Default shall be entitled continuing or result therefrom, repurchase its common stock and warrants and/or redeem or repurchase vested management options, in each case, from directors, officers and employees of the Parent and its Subsidiaries, and (iv) so long as no Default or Unmatured Default shall be continuing or result therefrom, the Borrower may make distributions to cumulative dividends the Parent and the Parent may redeem, repurchase, acquire or retire an amount of its capital stock or warrants or options therefor, or declare and pay any dividend or make any distribution on its capital stock (collectively, “Distributions”), either (a) if at the time of making such Distribution the Leverage Ratio (calculated on a pro forma basis based on the Series A Preferred Stock payable semiannually, which dividends shall be declared by Parent’s most recent financial statements delivered pursuant to Section 6.1 and giving effect to any Permitted Acquisition since the Board date of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreementfinancial statements, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date Distribution and no liability shall be any Indebtedness incurred in respect thereofconnection therewith, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock all in accordance with the foregoing paragraph terms of this Agreement) is less than or equal to 2.75 to 1.00, on an unlimited basis, and (iib) if at the product time of making such Distribution the Leverage Ratio (A) calculated on a pro forma basis based on the aggregate dividends payable per share Parent’s most recent financial statements delivered pursuant to Section 6.1 and giving effect to any Permitted Acquisition since the date of Common Stock such financial statements, such Distribution and any Indebtedness incurred in such dividend period times (B) connection therewith, all in accordance with the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes terms of this Section 3(a), a dividend period with respect Agreement) is greater than 2.75 to a Dividend 1.00 in an amount not greater than the Maximum Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendAmount.

Appears in 4 contracts

Samples: Five Year Revolving Credit Agreement (United Stationers Inc), Five Year Revolving Credit Agreement (United Stationers Inc), Five Year Revolving Credit Agreement (United Stationers Inc)

Dividends. (a) Holders The holders of shares of the then outstanding Series A Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be when and as declared by the Board of Directors or a duly authorized committee thereof, of the Corporation out of the assets of the Company any funds legally available therefor, and shall be dividends at the rate of $2.00 per share per year, payable semiannually commencing in cash, except as provided below, in equal amounts quarterly on the 180th day following the Issue Date (fifteenth day, or the following Business Day if any such payment date is not a Business Day) , the next succeeding Business Day, of January, April, July and October in each year, beginning ______________, 1997 (each such date day being referred hereinafter called a "Quarterly Dividend Date" and each period ending on a Quarterly Dividend Date being hereinafter called a "Dividend Period"), to herein as a “Dividend Payment Date”) shareholders of record at the rate per annum close of 6% per share business on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) date as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared fixed by the Board of DirectorsDirectors of the Corporation at the time of declaration of the dividend (the "Record Date"), shall not be paid or payable on such Dividend Payment Date and no liability which shall be incurred in respect thereof, and instead, such Deferred not fewer than 10 nor more than 30 days preceding the Quarterly Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends any dividend payable for the initial Dividend Period and for any other period that is Dividend Period shorter or longer than a full semiannual dividend period will Dividend Period shall be prorated and computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are Dividends paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock 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 per share basis among all such shares at the time outstanding. Notwithstanding the foregoing, for any twelve (12) Dividend Periods the Company shall have the right to pay the dividend in additional shares of Series A Preferred Stock determined by dividing the total amount of the dividend to be paid in shares of Series A Preferred Stock by the Liquidation Value (as defined herein) per share of Series A Preferred Stock. The issuance of additional shares of Series A Preferred Stock pursuant to this subparagraph (3) shall be evidenced by a stock certificate representing such shares issued on the related Quarterly Dividend Date and delivered on or immediately thereafter. Notwithstanding any other provision hereof, then no fractional shares of the Corporation shall be issued in connection with the payment of any dividend on Series A Preferred Stock in additional shares of Series A Preferred Stock. Instead, any holder of outstanding Series A Preferred Stock having a fractional interest arising upon the payment of a dividend shall in additional shares of Series A Preferred Stock shall, on the related Quarterly Dividend Date, be payable paid an amount in respect cash equal to the Liquidation Value times the fraction of each a share of Series A Preferred Stock for to which such period in an amount equal holder would otherwise be entitled. In the event the Company fails to pay any dividend on the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance on any Quarterly Dividend Date, the Company shall not pay any dividends on any other class of stock of the Company (other than (i) pro rata with other securities of the Company ranking pari passu with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a or (ii) with Junior Shares) until such dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment DateSeries A Preferred Stock has been paid. Except as provided in these Articles Supplementary, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends Series A Preferred Stock shall not accrue be entitled to participate in the earnings or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders assets of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendCorporation.

Appears in 3 contracts

Samples: Common Stock and Preferred Stock Purchase Agreement (Wellsford Real Properties Inc), Merger Agreement (Equity Residential Properties Trust), Merger Agreement (Equity Residential Properties Trust)

Dividends. (a) Holders Subject to clause 11(c) below, if the Company declares and pays any dividends on the Ordinary Shares, then, in that event, holders of shares of Series A Preferred Stock Preference Shares shall be entitled to cumulative share in such dividends on a pro rata basis, as if their Preference Shares had been converted into Ordinary Shares pursuant to clause 13 below immediately prior to the Series A Preferred Stock payable semiannuallyrecord date for determining the holders of Ordinary Shares eligible to receive such dividends. (b) If the Company does not consummate a Qualified IPO within 18 months after the Closing (“IPO Dividend Date”), which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out shall (subject to the Company’s compliance with the provisions of the assets Act and the Articles) declare and the holders of Preference Shares shall receive, in addition to the dividends described in clause 11 (a), dividends at an annual rate equal to 10% of the Company legally available thereforAccreted Value, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed calculated on the basis of a 360-day year year, consisting of twelve 30-day months. Commencing , which shall accrue on and following a daily basis from the Meeting End IPO Dividend Date, whether or not declared by the Board of Directors, and shall be payable quarterly in arrears on March 31, June 30, September 30 and December 31 of each year (unless any such day is not a Business Day, in which event such dividends shall be payable on the event that next succeeding Business Day, without accrual to the actual payment date) (each such date, a “Dividend Payment Date”). Unless otherwise specified in a resolution of directors, accrued and unpaid dividends are shall compound and be added to the Accreted Value in effect immediately prior to each Dividend Payment Date; provided, that, in lieu thereof, such accrued and unpaid dividends may (i) be paid on shares to the holders of Common Stock Preference Shares in cash or (ii) be paid in cash or compound and be added to the Accreted Value in any dividend period combination thereof, in each case as specified in a resolution of directors. (c) The Company shall not declare or pay any dividends on, or make any other distributions with respect to the Series A Preferred Stockor redeem, then a dividend shall be payable in respect of each share of Series A Preferred Stock purchase or otherwise acquire for such period in an amount equal to the greater of consideration, any Junior Securities unless and until (i) all accrued and unpaid dividends on the amount otherwise payable Preference Shares have been paid in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph full and (ii) prior to the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a IPO Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Dateaffirmative vote or written consent of the holders of a majority of the then outstanding Preference Shares, voting as a separate class, shall have been received; provided, however, that the foregoing limitation shall not apply to any: (i) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders redemption, purchase or other acquisition of record on the close Junior Securities in connection with any put or call post-termination rights in any employment contract, benefit plan or other similar arrangement with one or more employees, officers, directors or consultants of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other partyof its subsidiaries; (ii) exchange, dividends shall not accrue redemption, reclassification or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor conversion of any proposal made at a meeting class or series of stockholders Junior Securities for any class or series of Junior Securities; or (iii) purchase of fractional interests in any Junior Securities under the Company in order to effect the Stockholder Approval (conversion or whose transferor Holder was so obligated) if exchange provisions of such Holder (or such transferor Holder Junior Securities or the Affiliates security being converted or exchanged, or in connection with any combination or reclassification of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendJunior Securities.

Appears in 3 contracts

Samples: Shareholders Agreement (Michael Kors Holdings LTD), Restructuring Agreement (Michael Kors Holdings LTD), Subscription Agreement (Michael Kors Holdings LTD)

Dividends. (a) Holders Upon the grant of shares of Series A Preferred Stock Common Shares pursuant to Section 2(b)(ii), the Grantee shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (andreceive, for the avoidance of doubteach Common Share granted, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater 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 Termination of Employment of the Grantee. After the date of grant of the Common Shares pursuant to Section 2(b)(ii), the holder of such Common Shares shall be entitled to receive dividends in the same manner as dividends are paid to all other holders of Common Shares. (b) Upon the grant of Common Shares pursuant to Section 2(b)(iii), the Grantee shall be entitled to receive, 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 Change in Control. After the date of grant of the Common Shares pursuant to Section 2(b)(iii), the holder of such Common Shares shall be entitled to receive dividends in the same manner as dividends are paid to all other holders of Common Shares. (c) Upon grant of the 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 declared with respect to the Common Shares with a record date on or after the Effective Date and before the Share Issuance Date (other than those with respect to which an adjustment was made pursuant to Section 6); provided that, notwithstanding the foregoing, if the number of Restricted Shares received pursuant to Section 3(a) is reduced so that the Fair Market Value of the Common Shares underlying the Restricted Shares received is less than or equal to the Maximum Value (as required under Section 3), then the amount the Grantee shall be entitled to receive pursuant to this Section 4(c) shall equal the product of (i) the per share amount otherwise payable in of all dividends declared with respect of such share of Series A Preferred Stock in accordance to the Common Shares with a record date on or after the foregoing paragraph Effective Date and before Share Issuance Date (other than those with respect to which an adjustment was made pursuant to Section 6) and (ii) the product number of Restricted Shares the Grantee would have received had no such reduction occurred. After the Share Issuance Date, the holder of Restricted Shares (Awhether vested or unvested) shall be entitled to receive the aggregate dividends payable per share amount of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period any dividends declared with respect to a Dividend Payment Date is the period commencing Common Shares for each Restricted Share (whether vested or unvested) held on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, record date of each such dividend and each such dividend shall be paid in the Issue Date) and ending on the day immediately prior same manner as dividends are paid to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable Common Shares. (each, a “Dividend Record Date”). Notwithstanding anything d) Except as provided in this Section 3(a) to 4, the contrary, and without limiting any other remedy available to the Company or any other party, dividends Grantee shall not accrue be entitled to receive any payments in lieu of or be payable in connection with dividends with respect of shares initially issued to any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendNotional Units and/or Restricted Shares.

Appears in 3 contracts

Samples: Notional Unit Award Agreement (Tanger Properties LTD Partnership /Nc/), Notional Unit Award Agreement (Tanger Properties LTD Partnership /Nc/), Notional Unit Award Agreement (Tanger Properties LTD Partnership /Nc/)

Dividends. (a) Holders of the then outstanding shares of Series A C Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be declared when and as authorized by the Board of Directors or a duly authorized committee thereofDirectors, out of funds legally available for the assets payment of dividends, cumulative preferential cash dividends at the rate of 6.25% of the Company legally available therefor$25.00 liquidation preference per annum (equivalent to a fixed annual amount of $1.5625 per share). Such dividends shall be cumulative from [ • ], 20211 and shall be payable semiannually commencing quarterly in arrears on the 180th day following the Issue Date (or the following Business Day before January 15, April 15, July 15 and October 15 of each year or, if any such payment date is not a Business Day) business day, the next succeeding business day (each such date being referred to herein as each, a “Dividend Payment Date”) at the rate per annum of 6% per share ). Any dividend payable on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable Series C Preferred Stock for any other period that is shorter or longer than a full semiannual partial dividend period will shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders holders of record on as they appear in the stock records of the Corporation at the close of business on the applicable record date, which shall be the last day on which of each of March, June, September and December, as the Board of Directors or a duly authorized committee thereof declares case may be, immediately preceding the dividend payable applicable Dividend Payment Date (each, a “Dividend Record Date”). 1 To be the last dividend payment date that occurs before the Effective Time of the Merger (provided that if such Effective Time occurs after the dividend record date for a dividend and before the dividend payment date for such dividend, such date shall be the dividend payment date for such dividend). (b) No dividends on shares of Series C Preferred Stock shall be declared by the Corporation or paid or set apart for payment by the Corporation at such time as the terms and provisions of any agreement of the Corporation, including any agreement relating to its indebtedness, prohibit such declaration, payment or setting apart for payment or provide that such declaration, payment or setting apart for payment would constitute a breach thereof or a default thereunder, or if such declaration or payment shall be restricted or prohibited by law. (c) Notwithstanding anything the foregoing, dividends on the Series C Preferred Stock shall accrue whether or not the terms and provisions set forth in this Section 3(a3(b) hereof at any time prohibit the current payment of dividends, whether or not the Corporation has earnings, whether or not there are funds legally available for the payment of such dividends and whether or not such dividends are declared. Accrued but unpaid dividends on the Series C Preferred Stock shall accumulate as of the Dividend Payment Date on which they first become payable. (d) Except as provided in Section 3(e) below, unless full cumulative dividends on the Series C Preferred Stock have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof is set apart for payment for all past dividend periods and the then current dividend period, no dividends (other than dividends in shares of Common Stock or dividends in shares of any series of Preferred Stock ranking junior to the contrary, Series C Preferred Stock as to dividends and without limiting upon liquidation) shall be declared or paid or set aside for payment nor shall any other remedy distribution be declared or made upon the Common Stock, or any Preferred Stock of the Corporation ranking junior to or on a parity with the Series C Preferred Stock as to dividends or upon liquidation, nor shall any shares of Common Stock, or any shares of Preferred Stock of the Corporation ranking junior to or on a parity with the Series C Preferred Stock as to dividends or upon liquidation be redeemed, purchased or otherwise acquired for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any such shares) by the Corporation (except by conversion into or exchange for other capital stock of the Corporation ranking junior to the Company Series C Preferred Stock as to dividends and upon liquidation and except for transfers made pursuant to the provisions of Article VII of the Charter). (e) When dividends are not paid in full (or a sum sufficient for such full payment is not so set apart) on the Series C Preferred Stock and the shares of any other partyseries of Parity Stock, all dividends declared upon the Series C Preferred Stock and the shares of any other series of Parity Stock shall be declared pro rata so that the amount of dividends declared per share of Series C Preferred Stock and the shares of any other series of Parity Stock shall in all cases bear to each other the same ratio that accrued dividends per share on the Series C Preferred Stock and the shares of any other series of Parity Stock (which shall not accrue include any accrual in respect of unpaid dividends for prior dividend periods if such preferred stock does not have a cumulative dividend) bear to each other. No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on Series C Preferred Stock which may be in arrears. (f) Any dividend payment made on shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect Series C Preferred Stock shall first be credited against the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued earliest accrued but unpaid dividend due with respect to such shares which remains payable. Holders of Series C Preferred Stock shall bear not be entitled to any dividend, whether payable in cash, property or stock in excess of full cumulative dividends on the Stockholder Approval LegendSeries C Preferred Stock as described above.

Appears in 3 contracts

Samples: Merger Agreement (Ready Capital Corp), Merger Agreement (Anworth Mortgage Asset Corp), Merger Agreement (Ready Capital Corp)

Dividends. (a) Holders of shares of Series A Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereofreceive, out of the assets of the Company, Dividends on the terms described below: (i) For each period from and including the Original Issue Date, and to but excluding the fifth anniversary of the Original Issue Date. (the “First Reset Date”), the Company legally available thereforshall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Company, on each Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Series C Preferred Stock (the “Dividends”) at a rate per annum equal to 7.50% of the Liquidation Preference per share of Series C Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(ii) below. For each Payment Period beginning on the First Reset Date, the Dividend Rate shall be equal to the prior Payment Period’s Dividend Rate, plus 1.50%. Subject to Section 4(c), to the extent not paid in cash, whether or not the Company has earnings, whether or not the payment of such dividends is then permitted under Delaware law, whether or not such dividends are authorized or declared, and whether or not any agreements to which the Company is a party prohibit the current payment of dividends, including any agreement relating to the Company’s indebtedness, Dividends on each share of Series C Preferred Stock shall accrue daily from and after the Original Issue Date of such share and shall compound on a quarterly basis on each Dividend Payment Date (i.e., no dividends shall accrue on other dividends unless and until the first Dividend Payment Date for such other dividends has passed). The Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 6 or upon any conversion of the Series C Preferred Stock pursuant to Section 7. Dividend payments shall be aggregated per Holder and shall be payable semiannually commencing on made to the 180th day following the Issue Date nearest cent (or the following Business Day if any with $0.005 being rounded upward). (ii) Each Dividend if, as and when such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be Dividends are declared by the Board of Directors, shall not be paid or payable to the Holders in cash or, at the option of the Holder, in shares of Common Stock. Any shares of Common Stock issued in payment of a Dividend on such Dividend Payment Date and no liability Preferred Stock shall be incurred valued at the closing price of the last Trading Day preceding the record date designated by the Board of Directors relating to such Dividends. Notwithstanding anything in respect thereofthis Certificate of Designation to the contrary, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which until the Company is has obtained the Requisite Stockholder Approval, the Company may not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on issue shares of Common Stock in any dividend period with respect payment of a Dividend to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for extent such period payment would result in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number issuance of shares of Common Stock into which such share in excess of Series A Preferred Stock is then convertiblethe Requisite Stockholder Approval. (iii) Each Dividend shall be paid pro rata to the Holders. For purposes of this Section 3(a), a dividend period with respect Each Dividend shall be payable to a Dividend Payment Date is the period commencing Holders as they appear on the Register at the Close of Business on the date which is 15 days preceding the applicable Dividend Payment Date (orsuch date, if there is no preceding an “Dividend Payment Record Date”). (a) If the Holders elect to receive a cash dividend payment and the Company fails to make the corresponding cash dividend payment (a “Dividend Nonpayment”) with respect to three or more consecutive or non-consecutive Payment Periods, the Issue DateDividend Rate on the Preferred Stock will increase an additional 0.25% per annum commencing immediately following the third Payment Period for which there has been a Dividend Nonpayment and will increase an additional 0.25% per annum every third succeeding Dividend Nonpayment (whether the Payment Periods to which such Dividend Nonpayments relate are consecutive or non-consecutive); provided, however, the maximum Dividend Rate on the Preferred Stock (after giving effect to Section 4(a)(i) and ending this Section 4(b)) shall be capped at 12.0% per annum. (c) If the date relating to a Liquidation pursuant to Section 6, upon any conversion of the Series C Preferred Stock pursuant to Section 7, or upon any redemption of the Series C Preferred Stock pursuant to Section 8, respectively, is after a Dividend Payment Record Date for a declared Dividend on the day immediately Series C Preferred Stock but occurs on or prior to the next Dividend Payment Date. Dividends payable , then the Holder of such share of Series C Preferred Stock at the Close of Business on a such Dividend Payment Record Date shall will be payable entitled, notwithstanding the related Liquidation, conversion or redemption, as applicable, to Holders receive, on or, at the Company’s election, before such Dividend Payment Date, such declared Dividend on such share of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”)Series C Preferred Stock. Notwithstanding anything Except as provided in this Section 3(a) 4(c), Dividends on any share of Preferred Stock will cease to accumulate from and after the contrarydate relating to a Liquidation pursuant to Section 6, and without limiting upon any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders conversion of the Company in order Series C Preferred Stock pursuant to effect Section 7, or upon any redemption of the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so Series C Preferred Stock pursuant to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendSection 8, as applicable.

Appears in 3 contracts

Samples: Securities Purchase Agreement (Canoo Inc.), Securities Purchase Agreement (Canoo Inc.), Securities Purchase Agreement (Canoo Inc.)

Dividends. (a) Holders of shares Each Holder of Series A B Preferred Stock shall be entitled to cumulative receive, when, as and if declared by the Board of Directors, out of funds legally available therefor, cash dividends on the each share of Series A B Preferred Stock at a rate per annum equal to 13.5% of the Liquidation Preference of such share. All dividends shall be cumulative, whether or not earned or declared, and shall accrue on a daily basis from the date of issuance of Series B Preferred Stock, and shall be payable semiannuallyannually in arrears on each Dividend Payment Date, commencing on the first Dividend Payment Date after the date of issuance of such Series B Preferred Stock. Each dividend on Series B Preferred Stock shall be payable to the Holders of record of Series B Preferred Stock as they appear on the stock register of the Corporation on such record date as may be fixed by the Board of Directors, which record date shall not be less than ten nor more than 60 days prior to the applicable Dividend Payment Date. In the event of the repurchase of any shares of Series B Preferred Stock, dividends shall cease to accrue in respect of shares of Series B Preferred Stock on the date of their repurchase by the Corporation unless the Corporation shall have failed to pay the relevant repurchase price on the date fixed for repurchase. Notwithstanding anything to the contrary set forth above, unless and until such dividends are declared by the Board of Directors, there shall be no obligation to pay such dividends in cash; provided, that such dividends shall continue to cumulate and shall be paid at the time of repurchase, in the event of their repurchase, as provided herein if not earlier declared and paid. (b) All dividends paid with respect to shares of Series B Preferred Stock pursuant to paragraph B(3)(a) shall be paid pro rata to the Holders entitled thereto. (c) Dividends on account of arrears for any past Dividend Period may be declared and paid at any time, without reference to any regular Dividend Payment Date, to the Holders of record on any date as may be fixed by the Board of Directors, which date is not more than 30 days prior to the payment of such dividends. (d) No full dividends shall be declared by the Board of Directors or paid or funds set apart for the payment of dividends or other distributions on any Series B Parity Securities for any period, and no Series B Parity Securities may be repurchased, redeemed or otherwise retired, nor may funds be set apart for such payment, unless (i) full Accumulated Dividends have been paid or set apart for such payment on the Series B Preferred Stock and Series B Parity Securities for all Dividend Periods terminating on or prior to the date of payment of such full dividends or distributions on, or such repurchase or redemption of, such Series B Parity Securities (the "Series B Parity Payment Date") and (ii) an amount equal to a duly authorized committee thereof, out prorated dividend on the Series B Preferred Stock and Series B Parity Securities at the customary dividend rates for such securities for the period from the Dividend Payment Date immediately prior to the Series B Parity Payment Date to the Series B Parity Payment Date have been paid or set apart for payment. In the event that such dividends are not paid in full or set apart for payment with respect to all outstanding shares of Series B Preferred Stock and of any Series B Parity Securities and funds available for payment of dividends shall be insufficient to permit payment in full to the holders of all such stock of the assets full preferential amounts to which they are then entitled, then the entire amount available for payment of dividends shall be distributed ratably among all such holders of Series B Preferred Stock and of any Series B Parity Securities in proportion to the full amount to which they would otherwise be respectively entitled. (e) The Holders of Series B Preferred Stock shall be entitled to receive the dividends provided for in paragraph B(3)(a) hereof in preference to and in priority over any dividends upon any of the Company legally available thereforSeries B Junior Securities, so that if at any time full Accumulated Dividends on all shares of Series B Preferred Stock then outstanding have not been paid for all Dividend Periods then elapsed and shall be payable semiannually commencing a prorated dividend on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) Series B Preferred Stock at the rate per annum of 6% per share on aforesaid from the Liquidation Preference; provided that, in the event that on any Dividend Payment DateDate immediately preceding the Series B Junior Payment Date (as defined below) to the Series B Junior Payment Date have not been paid or set aside for payment, the Company is not permitted amount of such unpaid dividends shall be paid before any sum shall be set aside for or applied by the Corporation to declare the purchase, redemption or pay such other acquisition for value of any shares of Series B Junior Securities (either pursuant to any applicable sinking fund requirement or otherwise) or any dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) other distribution shall not be declared by the Board of Directors, shall not be paid or payable declared and set apart for payment on any Series B Junior Securities (the date of any such Dividend actions to be referred to as the "Series B Junior Payment Date Date"); provided, however, that the foregoing shall not (i) prohibit the Corporation from repurchasing shares of Series B Junior Securities from a Holder who is, or was, a director or employee of the Corporation (or an affiliate of the Corporation) and no liability shall be incurred in respect thereof(ii) prohibit the Corporation from making dividends, and insteadother distributions, such Deferred Dividend shall be declaredredemptions, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability repurchases or acquisitions in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be Series B Junior Securities payable in addition to, Series B Junior Securities and not cash in lieu of, any dividend which would ordinarily be of fractional shares of such Series B Junior Securities. (f) Dividends payable on such succeeding Dividend Payment Date). The amount of dividends payable Series B Preferred Stock for any other period that is shorter or longer less than a full semiannual dividend period will one year shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on months and following the Meeting End Date, actual number of days elapsed in the event that period for which such dividends are payable. (g) The Corporation shall nor claim any deduction from gross income for dividends paid on shares of Common Series B Preferred Stock in any dividend period Federal Income tax return, claim for refund, or other statement, report or submission made to the Internal Revenue Service, and shall make any election or take any similar action to effectuate the foregoing except, in each case, if there shall be a change in law such that the Corporation may claim such dividends as deductions from gross income without affecting the ability of the Holders to claim the dividends received deduction under Section 243(a)(l) of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor provision). At the reasonable request of any Holder (and at the expense of such Holder), the Corporation shall join in the submission to the Internal Revenue Service of a request for a ruling that the dividends paid on Series B Preferred Stock shall be eligible for the dividends received deduction under Section 243(a)(l) of the Code (or any successor provision). In addition, the Corporation shall cooperate with any Holder (at the expense of such Holder) in any litigation, appeal or other proceeding relating to the eligibility for the dividends received deduction under Section 243(a)(1) of the Code (or any successor provision) of any dividends (within the meaning of Section 316(a) of the Code or any successor provision) paid on Series B Preferred Stock. To the extent possible, the principles of this paragraph B(3)(g) shall also apply with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph state and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendlocal income taxes.

Appears in 3 contracts

Samples: Securities Purchase and Contribution Agreement (Hislop Michael J), Securities Purchase and Contribution Agreement (Mindel Laurence B), Securities Purchase and Contribution Agreement (Il Fornaio America Corp)

Dividends. Authorize, declare or pay, directly or indirectly, any Dividends, except that the following shall be permitted: (a) Holders Dividends by any Company to the Borrower or any Guarantor; (b) payments to Holdings to permit Holdings to repurchase or redeem Qualified Capital Stock of shares Holdings held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates) of Series A Preferred Stock any Company, upon their death, disability, retirement, severance, resignation or termination of employment or service or pursuant to any employee or directors’ and/or officers’ equity or stock compensation plan; provided, that the aggregate cash consideration paid for all such redemptions and payments shall not exceed, in any fiscal year, $50,000,000 (and up to 50% of such $50,000,000 not used in any fiscal year may be carried forward to the next succeeding (but no other) fiscal year); (A) to the extent actually used by Holdings or Intermediate Holdco to pay such Taxes, costs and expenses, payments by the Borrower to or on behalf of Holdings or Intermediate Holdco in an amount sufficient to pay franchise taxes and other fees required to maintain the legal existence of Holdings or Intermediate Holdco and (B) payments by the Borrower to or on behalf of Holdings or Intermediate Holdco in an amount sufficient to pay out-of-pocket legal, accounting and filing costs and other expenses in the nature of overhead in the ordinary course of business of Holdings or Intermediate Holdco in an aggregate amount not to exceed $50,000,000 in any fiscal year; (d) Dividends, provided that both before and after giving effect to any such Dividend, (I) Pro Forma Liquidity shall be entitled greater than the Threshold Basket Amount, (II) no Default or Event of Default shall have occurred or shall result therefrom and (III) the Consolidated Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) is not less than the Minimum Fixed Charge Coverage Ratio and it being understood that such Dividend shall not be included in the calculation of Consolidated Fixed Charges for purposes of this clause (III); (e) Permitted Tax Distributions and Employee Payment Distributions; (f) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Capital Stock) of such person; (g) to cumulative dividends on the Series A Preferred Stock payable semiannuallyextent ultimately contributed to the Borrower, which dividends shall be declared the Net Cash Proceeds from the sale of Equity Interests (other than Disqualified Capital Stock) of Holdings and, to the extent ultimately contributed to the Borrower, Equity Interests of any of Holdings’ direct or indirect parent companies, in each case, to members of management, directors or consultants of Holdings, the Borrower or any of their Subsidiaries; (h) any amount paid to Sponsor pursuant to the terms of the Advisory Agreement, but only to the extent that no Event of Default or Trigger Event has occurred and is continuing; (i) the Transactions as contemplated by the Board of Directors Transaction Documents, including (i) a conveyance, transfer or a duly authorized committee thereof, out assignment of the assets North Yard and the West Yard to Sunoco or any nominee of Sunoco and (ii) the sale of the Company legally available thereforNorth Yard Assets and the Other Logistics Assets to any third party; (j) Dividends permitted under Section 6.02(g); (k) upon consummation of an IPO, (i) the net proceeds received by the Borrower from the sale of securities in such IPO and shall be payable semiannually commencing (ii) dividends from Available Cash on the 180th day and following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; consummation, provided that, in the event that on case of this clause (ii), after giving effect to any Dividend Payment Datesuch dividend, Liquidity shall equal or exceed the Company is not permitted to declare or pay such dividend or incur such liability either greater of (x) as a matter an amount equal to 15% of law or the then current Borrowing Base and (y) under $10,000,000; (l) Dividends taking the terms form of any loan agreementissuance of Qualified Capital Stock in the Borrower; (m) prior to, credit agreementbut in contemplation of an IPO, guaranty, or related agreement, Dividends equal to existing cash and accounts receivable of Borrower (which upon consummation of the IPO (and in no event later than three (3) Business Days after the making of such dividend (a “Deferred Dividend”) shall not be declared by the Board of DirectorsDividends), shall not be paid or payable on such Dividend Payment Date and no liability replaced with an equal amount of IPO proceeds (which portion of the IPO proceeds shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (andnot, for the avoidance of doubt, such Deferred Dividend be distributed pursuant to clause (k)(i) above); and (n) a distribution of the Equity Interests of PESA to an Affiliate Transferee, so long as PESA does not own any material portion of the Refinery, provided that, notwithstanding anything to the contrary herein, Dividends permitted pursuant to any of the foregoing clauses shall not be payable included in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The the calculation of total amount of dividends payable for Dividends consummated pursuant to any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendclauses.

Appears in 2 contracts

Samples: Revolving Credit and Guaranty Agreement (Philadelphia Energy Solutions Inc.), Revolving Credit and Guaranty Agreement (Philadelphia Energy Solutions Inc.)

Dividends. (a) Holders of shares of Series A Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued to any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.

Appears in 2 contracts

Samples: Purchase Agreement (Genco Shipping & Trading LTD), Purchase Agreement (Apollo Management Holdings GP, LLC)

Dividends. (a) Holders The holders of shares of Series A outstanding Redeemable Convertible Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyentitled, which dividends shall be declared by the Board of Directors or a duly authorized committee thereofwhen, out of the assets of the Company legally available therefor, as and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and out of funds lawfully available therefor to receive cumulative dividends at the liability in respect thereof be incurred rate per annum of 15% per share on the first succeeding Liquidation Preference (equivalent to $15.00 per annum per share), subject to adjustment as provided herein, payable quarterly in arrears (the “DIVIDEND RATE”). The Dividend Payment Date Rate shall decrease to a rate per annum of 12% per share on which the Company is not prohibited from declaring, paying Liquidation Preference (equivalent to $12 per annum per share) if the Closing Price of the Common Stock equals or exceeds 150% of the then-effective Conversion Price for at least 180 consecutive Trading Days. Dividends payable for each full Dividend Period will be computed by dividing the Dividend Rate by four and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable arrears on each Dividend Payment Date for the Dividend Period ending immediately prior to such succeeding Dividend Payment Date), to the holders of record of Redeemable Convertible Preferred Stock at the close of business on the Record Date applicable to such Dividend Payment Date. The amount Such dividends shall be cumulative from the most recent date as to which dividends shall have been paid or, if no dividends have been paid, from the Issue Date (whether or not in any Dividend Period or Dividend Periods there shall be funds of dividends the Company legally available for the payment of such dividends) and shall accrue on a day-to-day basis, whether or not earned or declared, from and after the Issue Date. Dividends payable for any other period that is shorter partial Dividend Period or longer than a full semiannual dividend period will for the initial Dividend Period ending on the day immediately prior to [ ] [Note: the first Dividend Payment Date after the Swap Closing to be inserted], shall be computed on the basis of days elapsed over a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that Accumulations of dividends are paid on shares of Common Redeemable Convertible Preferred Stock in shall not bear interest. The initial dividend rate on the Redeemable Convertible Preferred Stock for the initial Dividend Period, commencing on the Issue Date (assuming an Issue Date of [ ] [Note: the date of the Swap Closing to be inserted] and a then-applicable Dividend Rate of 15% per annum), will be $15 per share, subject to adjustment as provided for herein, and will be payable, when, as and if declared by the Board of Directors, on [ ] [Note: the first Dividend Payment Date after the Swap Closing to be inserted] out of funds lawfully available therefor. Each subsequent quarterly dividend on the Redeemable Convertible Preferred Stock, when, as and if declared by the Board of Directors, will be $3.75 per share, subject to adjustment as provided for herein. (b) No dividend will be declared or paid upon, or any dividend period sum set apart for the payment of dividends upon, any outstanding share of the Redeemable Convertible Preferred Stock with respect to any Dividend Period unless all dividends for all preceding Dividend Periods have been declared and paid, or declared and a sufficient sum of cash and/or number of shares of Redeemable Convertible Preferred Stock or Common Stock, if permitted under Section 3A, has been set apart for the Series A payment of such dividend upon all outstanding shares of Redeemable Convertible Preferred Stock. (c) Holders of shares of Redeemable Convertible Preferred Stock shall not be entitled to any dividends on the Redeemable Convertible Preferred Stock, then a dividend whether payable in cash, property or stock, in excess of full cumulative dividends. No interest, or sum of money in lieu of interest, shall be payable in respect of each share of Series A any dividend payment or payments on the Redeemable Convertible Preferred Stock for such period which may be in an amount equal to the greater of arrears. (d) If (i) within 45 days after a demand to file the amount otherwise payable in respect of such share of Series A Preferred Stock Shelf Registration Statement has been made in accordance with the foregoing paragraph and Investor Rights Agreement, the Shelf Registration Statement has not been filed with the Commission, (ii) within 135 days after a demand to file the product Shelf Registration Statement has been made in accordance with the Investor Rights Agreement, the Shelf Registration Statement has not been declared effective by the Commission or (iii) after the Shelf Registration Statement has been declared effective by the Commission, (A) the Shelf Registration Statement thereafter ceases to be effective or (B) the Shelf Registration Statement or the related prospectus ceases to be usable in connection with resales of Transfer Restricted Securities during the period that any Transfer Restricted Securities (other than Transfer Restricted Securities held or beneficially owned by Affiliates of the Company, other than the Initial Holder) remain outstanding (each such event referred to in clauses (i), (ii) and (iii), a “REGISTRATION DEFAULT”), additional dividends shall accrue on the Redeemable Convertible Preferred Stock at the rate of 1.00% (100 basis points) per annum above the Dividend Rate for the first 30 days of such Registration Default, increasing to a rate of 1.50% (150 basis points) per annum thereafter, until all Registration Defaults have been cured from, and including, the date on which any such Registration Default shall occur to, but excluding, the date on which all Registration Defaults have been cured, subject to the exceptions set forth in Section 3(e). At all other times, dividends shall accumulate on the Redeemable Convertible Preferred Stock only at the Dividend Rate. (e) Additional dividends shall not accrue on the Redeemable Convertible Preferred Stock as a result of any Registration Default referred to in clause (iii) of Section 3(d) if (i) such Registration Default has occurred solely as a result of (A) the aggregate dividends payable per share filing of Common Stock in a post-effective amendment to the Shelf Registration Statement to incorporate annual audited financial information with respect to the Company where such dividend period times post-effective amendment is not yet effective and needs to be declared effective to permit Holders to use the related prospectus, (B) the number filing of a post-effective amendment to the Shelf Registration Statement to cover new Holders or beneficial owners of the Redeemable Convertible Preferred Stock or additional shares of Common Stock into which such share of Series A the Redeemable Convertible Preferred Stock is then convertible. For purposes acquired by any existing Holder or beneficial owner of this Section 3(a), a dividend period the Redeemable Convertible Preferred Stock or (C) other material events with respect to a Dividend Payment Date the Company that would need to be described in the Shelf Registration Statement or the related prospectus and (ii) in the case of clause (i)(C), the Company is proceeding promptly and in good faith to amend or supplement such Shelf Registration Statement and related prospectus to describe such events; provided, however, that in the period commencing on the preceding Dividend Payment Date case of clauses (ori)(A) or (C), if there is no preceding Dividend Payment Datesuch Registration Default referred to in clause (iii) of Section 3(d) occurs for a continuous period in excess of 30 days, additional dividends as described in Section 3(d) shall accrue in accordance therewith from, and including, the Issue Date) and ending on date such Registration Default occurs until, but excluding, the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who date such Registration Default is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendcured.

Appears in 2 contracts

Samples: Investment Agreement (Transmeridian Exploration Inc), Investment Agreement (Transmeridian Exploration Inc)

Dividends. (a) Holders The holders of shares of the then outstanding Series A B Preferred Stock Shares shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be when and as declared by the Board of Directors or a duly authorized committee thereof, Trustees out of the assets of the Company any funds legally available therefor, and shall be cumulative dividends at the rate of $22.8125 per share per year, payable semiannually commencing in equal amounts of $5.703125 per share quarterly in cash on the 180th day following the Issue Date (fifteenth day, or the following Business Day if any such payment date is not a Business Day) , the next succeeding Business Day, of January, April, July and October in each year, beginning January 15, 1996 (each such date day being referred hereinafter called a "Quarterly Dividend Date" and each period ending on a Quarterly Dividend Date being hereinafter called a "Dividend Period"), to herein as a “Dividend Payment Date”) shareholders of record at the rate per annum close of 6% per share business on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) date as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared fixed by the Board of DirectorsTrustees at the time of declaration of the dividend (the "Record Date"), shall not be paid or payable on such Dividend Payment Date and no liability which shall be incurred in respect thereof, and instead, such Deferred not less than 10 nor more than 30 days preceding the Quarterly Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends any dividend payable for the initial Dividend Period and for any other period that is Dividend Period shorter or longer than a full semiannual dividend period will Dividend Period shall be prorated and computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing Dividends on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A B Preferred Stock Shares shall accrue and be cumulative from and including the date of original issue thereof, whether or not (i) dividends on such shares are earned or declared or (ii) on any Quarterly Dividend Date there shall be funds legally available for such period the payment of dividends. Dividends paid on the Series B Preferred Shares 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 per share basis among all such shares at the time outstanding. The amount of any dividends accrued on any Series B Preferred Shares at any Quarterly Dividend Date shall be the amount of any unpaid dividends accumulated thereon, to and including such Quarterly Dividend Date, whether or not earned or declared, and the amount of dividends accrued on any shares of Series B Preferred Shares at any date other than a Quarterly Dividend Date shall be equal to the greater sum of (i) the amount otherwise payable in respect of such share any unpaid dividends accumulated thereon, to and including the last preceding Quarterly Dividend Date, whether or not earned or declared, plus an amount calculated on the basis of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product annual dividend rate of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is $22.8125 for the period commencing after such last preceding Quarterly Dividend Date to and including the date as of which the calculation is made based on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Datea 360-day year of twelve 30- day months. Except as provided in these Articles, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends Series B Preferred Shares shall not accrue be entitled to participate in the earnings or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders assets of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendTrust.

Appears in 2 contracts

Samples: Merger Agreement (Equity Residential Properties Trust), Merger Agreement (Equity Residential Properties Trust)

Dividends. (a) Holders of shares of Series A Preferred No dividends or other distributions declared after the Effective Time on AFC Common Stock shall be entitled paid with respect to cumulative dividends on any shares of AFC Common Stock represented by an APY Stock Certificate until such APY Stock Certificate is surrendered for exchange according to the Series A Preferred procedures described above. No fractional shares of AFC Common Stock payable semiannuallywill be issued pursuant to the Merger. In lieu of the issuance of any fractional shares of AFC Common Stock, which dividends shall cash will be declared paid to holders of such fractional share in the amount of the product of such fractional share multiplied by the Average Stock Price. THE RECAPITALIZATION APY is currently authorized to issue only one class of APY Common Stock. The Board of Directors or of APY has approved, and SMA, the holder of more than a duly authorized committee thereof, out majority of the assets outstanding APY Common Stock, has approved by written consent, an amendment to the APY Charter that would authorize the issuance of APY Class B Common Stock. Immediately prior to and as a condition precedent to the consummation of the Company legally available thereforMerger, APY will file such Amendment with the Secretary of State of Delaware and will exchange one share of the APY Class B Common Stock for each share of APY Common Stock held by SMA. Such shares of APY Class B Common Stock shall be payable semiannually commencing on remain outstanding after the 180th day following Merger. See "The Charter Amendment" and "Appendix A-2--Form of Charter Amendment." CERTAIN REPRESENTATIONS AND WARRANTIES The Merger Agreement contains customary representations and warranties by AFC, Merger Sub and APY as to, among other things, (i) due organization, valid existence and good standing; (ii) corporate authority to enter into the Issue Date Merger Agreement and related agreements; (or iii) authorized capital stock; (iv) ownership of subsidiaries; (v) the following Business Day if any such payment date is not a Business Daylack of conflict of the Merger Agreement and related agreements and transactions with charters, bylaws, law and certain agreements; (vi) consents, approvals and authorizations of governmental entities; (each such date being referred to herein as a “Dividend Payment Date”vii) at compliance with law and contract; (viii) the rate per annum filing of 6% per share on certain documents with the Liquidation PreferenceCommission; provided that, in (ix) the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either accuracy of financial statements; (x) as the absence of certain litigation; (xi) the absence of certain changes including those having a matter material adverse effect, the payment of law or dividends other than regular quarterly cash dividends and a change in accounting policy; (yxii) under the terms receipt of fairness opinions; and (xiii) the lack of any loan agreementcontract or agreement obligating the payment of finder's fees, credit agreementbrokerage or agent's commissions, guarantyother than agreements with Salomon Brothers and Xxxxxxx Xxxxx. In addition, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period AFC represents that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) immediately following the amount otherwise payable in respect Effective Time, it will have available funds to satisfy the cash portion of such share of Series A Preferred Stock in accordance with the foregoing paragraph Merger Consideration; and (ii) to its knowledge, no event has occurred or condition exists in connection with the product Merger that would cause it to fail to satisfy any material applicable statute or written regulation. CERTAIN COVENANTS Conduct of (A) Business Pending the aggregate dividends payable per share of Common Stock in such dividend period times (B) Reorganization. Pursuant to the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertibleMerger Agreement, AFC and APY have made various customary covenants relating to the Merger Transactions. For purposes of this Section 3(a)APY has agreed that, a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.47

Appears in 2 contracts

Samples: Information Statement (Allmerica Financial Corp), Information Statement (Allmerica Financial Corp)

Dividends. (a) Holders of In the event that a distribution with respect to the shares of Series A Preferred REIT III 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 REIT III 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 REIT 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 REIT II Common Stock on the Closing Date immediately prior to the REIT Merger Effective Time. After the signing of this Agreement and before the REIT Merger Effective Time, REIT III shall coordinate with REIT II with respect to the declaration of, and the setting of record dates and payment dates for dividends on REIT III Common Stock so that holders of REIT III Common Stock do not receive both a dividend permitted by the proviso to Section 6.1(b)(iii) on REIT III Common Stock and a dividend permitted by the proviso to Section 6.2(b)(iii) on REIT II Common Stock received in the REIT Merger or fail to receive either a dividend permitted by the proviso to Section 6.1(b)(iii) on REIT III Common Stock or a dividend permitted by the proviso to Section 6.2(b)(iii) on REIT II Common Stock received in the REIT Merger. (b) In the event that REIT III 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), it shall notify REIT II at least 20 days prior to the Closing Date, and REIT II shall be entitled to cumulative dividends on declare a dividend per share payable to holders of REIT II Common Stock, in an amount per share of REIT II Common Stock equal to the Series A Preferred Stock payable semiannually, which dividends shall be quotient obtained by dividing (x) the dividend declared by REIT III with respect to each share of REIT III Common Stock by (y) the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in Exchange Ratio. In the event that on any Dividend Payment Date, the Company is not permitted to REIT II shall declare or pay such any dividend or incur such liability either other distribution that is expressly permitted pursuant to the proviso at the end of Section 6.2(b)(iii), it shall notify REIT III at least 20 days prior to the Closing Date, and REIT III shall be entitled to declare a dividend per share payable to holders of REIT III Common Stock, in an amount per share of REIT III Common Stock equal to the quotient obtained by multiplying (x) as a matter the dividend declared by REIT II with respect to each share of law or REIT II Common Stock by (y) under the terms of Exchange Ratio. The record date and time and payment date and time for any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”payable pursuant to this Section 7.8(b) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Closing Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.

Appears in 2 contracts

Samples: Merger Agreement (Resource Real Estate Opportunity REIT II, Inc.), Merger Agreement (Resource Apartment REIT III, Inc.)

Dividends. (a) Holders Each of shares of Series A Preferred Stock Parent and the Company shall declare a dividend to their respective stockholders, the record and payment date for which shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the last Business Day prior to the Effective Time, in each case, subject to funds being legally available therefor. The per share dividend amount payable by the Company shall be an amount equal to (i) the Company’s most recent monthly dividend, multiplied by the number of days elapsed since the last dividend record date through and including the day prior to the day on which the Board Effective Time occurs, and divided by the actual number of Directors or a duly authorized committee thereof declares days in the calendar month in which such dividend is declared, plus (ii) if necessary to enable the Company to make aggregate dividend distributions during its final taxable period equal to the Minimum Distribution Dividend, an additional amount (the “Company Additional Dividend Amount”) necessary so that the aggregate dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) is equal to the contraryMinimum Distribution Dividend, plus (iii) the Parent Additional Dividend Amount, if any, divided by the quotient of (A) one (1) divided by (B) the Exchange Ratio. The per share dividend amount payable by Parent shall be an amount equal to (i) Parent’s most recent quarterly dividend, multiplied by the number of days elapsed since the last dividend record date through and including the day prior to the day on which the Effective Time occurs, and without limiting any other remedy available divided by the actual number of days in the calendar quarter in which such dividend is declared, plus (ii) the Company Additional Dividend Amount, if any, divided by the Exchange Ratio, plus (iii) if necessary to enable Parent to make aggregate dividend distributions during the taxable year that includes the Closing Date equal to the Minimum Distribution Dividend, an additional amount (the “Parent Additional Dividend Amount”) necessary so that the aggregate dividend payable is equal to the Minimum Distribution Dividend. If the Company determines it is necessary to declare the Additional Dividend Amount, the Company shall notify Parent of such determination at least ten (10) days prior to the Company or any other partyStockholder Meeting. (b) Subject to Section 6.18(a), dividends Parent shall not accrue make, declare or be payable set aside any dividend or other distribution to its stockholders other than the authorization and payment of (i) distributions at its stated dividend or distribution rates with respect to the Parent Preferred Stock and (ii) regular quarterly cash distributions in respect of Parent Common Stock at an annual rate not in excess of $2.90 per share (with such increases in such annual rate as may be approved by Parent’s board of directors from time to time). (c) In the event that a distribution or dividend with respect to the shares initially issued any Holder who is contractually obligated of Company Common Stock permitted under the terms of this Agreement has (i) a record date prior to appear the Effective Time and vote in favor of any proposal made at a meeting of stockholders (ii) has not been paid as of the Effective Time, the holders of shares of Company in order Common Stock shall be entitled to effect receive such distribution or dividend from the Stockholder Approval (or whose transferor Holder was so obligated) if Company at the time such Holder (or such transferor Holder or the Affiliates shares are exchanged pursuant to Article III of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendthis Agreement.

Appears in 2 contracts

Samples: Merger Agreement (Ventas Inc), Merger Agreement (American Realty Capital Healthcare Trust Inc)

Dividends. (a) Holders of shares of Series A [B] Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be when, as and if declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, out of funds or property legally available therefor under Delaware law, non-cumulative dividends and distributions, if any, in the amount, kind and manner set forth in Section 5(b). Except as provided in the immediately preceding sentence, in Section 5(b) or in Section 6, Holders shall not be paid entitled to any other dividends or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred distributions on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date)Series [B] Preferred Stock. The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect Notwithstanding anything herein to the Series A Preferred Stockcontrary, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) dividends and distributions on the amount otherwise payable in respect of such share of Series A [B] Preferred Stock in accordance with the foregoing paragraph and shall not be cumulative; (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share Holders of Series A [B] Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect shall not be entitled to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which receive any dividends or distributions not declared by the Board of Directors or a duly authorized committee thereof declares of the dividend payable Board of Directors; and (eachiii) no interest, a “Dividend Record Date”). Notwithstanding anything or sum of money in this Section 3(a) to the contrarylieu of interest, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor dividend or distribution not so declared. (b) If the Board of any proposal made at Directors or a meeting of stockholders duly authorized committee of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder Board of Directors declares a dividend, or the Affiliates Corporation otherwise makes any distribution, on all outstanding shares of eitherCommon Stock, of cash, securities (including, without limitation, rights, warrants, options or evidences of indebtedness) fails so to appear or other property or assets (in each case excluding Non-Partial Common Stock Distributions and vote in favor. Any shares issued Reorganization Events) (such a dividend or distribution, a “Common Stock Distribution,” and the cash, securities, property or assets dividended or distributed on the Common Stock pursuant to such Common Stock Distribution, subject to the last sentence of Section 10(c), the “Distributed Property,” and the date such Distributed Property is paid to holders of Common Stock pursuant to such Common Stock Distribution, the “Common Stock Distribution Date,” and the record date for determining the holders of Common Stock entitled to receive such Common Stock Distribution, the “Common Stock Distribution Record Date”), then the Board of Directors or a duly authorized committee of the Board of Directors shall, in accordance with this Section 5(b), declare to be paid, or cause there to be distributed, to the Holders of the Series [B] Preferred Stock, Distributed Property in accordance with this Section 5(b). The date on which such Distributed Property is to be paid to Holders of the Series [B] Preferred Stock on account of such Common Stock Distribution shall bear be the Stockholder Approval LegendCommon Stock Distribution Date, and the kind and amount of Distributed Property to be dividended or distributed per share of Series [B] Preferred Stock shall be the kind and amount of Distributed Property that a holder of a number of shares of Common Stock equal to the Conversion Rate in effect at the close of business on the Common Stock Distribution Record Date for such Common Stock Distribution would have been entitled to receive pursuant to such Common Stock Distribution. The Corporation shall not declare any Common Stock Distribution unless the Corporation has funds legally available to comply, and complies, with this Section 5(b) with respect to such Common Stock Distribution. For avoidance of doubt, no dividend or distribution shall be payable on the Series [B] Preferred Stock pursuant to this Section 5(b) unless there shall occur a Common Stock Distribution. For avoidance of doubt, if (1) in connection with a Reorganization Event, the Board of Directors or a duly authorized committee of the Board of Directors declares a dividend, or the Corporation otherwise makes any distribution, on all outstanding shares of Common Stock and (2) in connection with such Reorganization Event, the Common Stock is converted into or exchanged for, or constitutes solely the right to receive, cash, securities or other property, then (x) such dividend or distribution shall be subject to this Section 5(b) but not to Section 10(d) and (y) such conversion into, exchange for or right to receive cash, securities or other property shall be subject to Section 10(d) but not to this Section 5(b). (c) Dividends or distributions that are payable on Series [B] Preferred Stock on a Common Stock Distribution Date pursuant to Section 5(b) on account of a Common Stock Distribution will be payable to holders of record of Series [B] Preferred Stock as they appear on the stock register of the Corporation at the close of business on the date (each such date, a “Record Date”) that is the Common Stock Distribution Record Date for such Common Stock Distribution. (d) If the Mandatory Conversion Date with respect to any share of Series [B] Preferred Stock is on or prior to a Record Date for a dividend or distribution on the Series [B] Preferred Stock pursuant to Section 5(b), then the Holder of such share of Series [B] Preferred Stock shall not have the right to receive such dividend or distribution. If the Mandatory Conversion Date with respect to any share of Series [B] Preferred Stock is after a Record Date for a dividend or distribution on the Series [B] Preferred Stock pursuant to Section 5(b) but on or prior to the date such dividend or distribution is to be made, then the Holder of such share of Series [B] Preferred Stock at the close of business on such Record Date shall have the right to receive such dividend or distribution notwithstanding such conversion. (e) For purposes of this Certificate of Designations, dividends and distributions will be deemed to have been declared and paid in full on the Series [B] Preferred Stock during a calendar quarter or any other period if there exists no Common Stock Distribution whose Common Stock Distribution Date occurs during such calendar quarter or period, as applicable.

Appears in 2 contracts

Samples: Stock Purchase Agreement (American International Group Inc), Stock Purchase Agreement (Metlife Inc)

Dividends. (a) Holders The holders of shares of Series A Preferred Stock Shares shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, when and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, out of funds legally available for the payment of dividends, dividends per Preferred Share at a rate equal to the product of (x) the Annual Dividend Rate and (y) the Stated Liquidation Preference Amount. In addition, the holders of Preferred Shares shall be entitled to receive dividends paid or payable on the Common Shares from time to time, if any, whether paid or payable in cash, shares of Capital Stock of the Corporation (including, but not limited to, Common Shares), evidence of its Indebtedness, rights or warrants to subscribe for or purchase any of its securities or any other assets or property, with respect to the number of Common Shares, or portion thereof, into which each Preferred Share is then convertible at the Conversion Price. The amount referred to in the foregoing sentence with respect to each Dividend Period shall be determined as of the applicable Dividend Payment Record Date by multiplying the number of Common Shares, or portion thereof calculated to the fourth decimal point, into which a Preferred Share would be convertible at the opening of business on such Dividend Payment Record Date (based on the Conversion Price then in effect) by the dividend payable or paid for such Dividend Period in respect of a Common Share outstanding as of the record date for the payment of dividends on the Common Shares with respect to such Dividend Period or, if different, with respect to the most recent period for which dividends with respect to the Common Shares have been declared. All dividends payable under the first sentence of this Section 3(a) shall be cumulative from the Issue Date, whether or not in any Dividend Period or Periods there shall be funds of the Corporation legally available for the payment of such dividends, and shall be payable, when, as and if authorized and declared, in arrears on Dividend Payment Dates, commencing on the first Dividend Payment Date after the Issue Date. Each such dividend shall be payable in arrears to the holders of record of the Preferred Shares, as they appear on the stock records of the Corporation at the close of business on each record date, which shall not be more than 30 days preceding the applicable Dividend Payment Date (the “Dividend Payment Record Date”), as shall be fixed by the Board of Directors. Any Dividend Arrearages may be authorized and declared and paid or payable at any time, without reference to any regular Dividend Payment Date, to holders of record on such date, which shall not be more than 45 days preceding the payment date thereof, as may be fixed by the Board of Directors. Dividends on the Preferred Shares shall, at the Corporation’s option, on each Dividend Payment Date, either (i) be paid in cash on such Dividend Payment Date or (ii) added to the Stated Liquidation Preference Amount for the purposes of calculating dividends pursuant to this Section 3(a) (until such time as the Corporation declares and no liability shall be incurred pays such dividend in respect thereoffull and in cash, and insteadat which time, such Deferred Dividend dividend shall no longer be declared, become payable and be paid and part of the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, Stated Liquidation Preference Amount for the avoidance purposes of doubt, such Deferred Dividend shall be payable in addition to, calculating dividends pursuant to this Section 3(a)) (any amount that has been added to the Stated Liquidation Preference Amount and not in lieu ofyet paid, any dividend which would ordinarily be payable on such succeeding a “Dividend Payment DateArrearage”). . (b) The amount of dividends payable for the initial Dividend Period, or any other period that is shorter or longer than a full semiannual dividend period will Dividend Period, on the Preferred Shares shall be computed on the basis of twelve 30-day months and a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Dateyear. (c) All dividends paid with respect to Preferred Shares shall be paid pro rata. (d) So long as any Preferred Shares are outstanding, no dividends, except as described in the event that immediately following sentence, shall be authorized and declared and paid or set apart for payment on any series or class or classes of Parity Shares for any period unless full cumulative dividends have been or contemporaneously are authorized and declared and paid or authorized and declared and a sum sufficient for the payment thereof set apart for such payment on the Preferred Shares for all Dividend Periods prior to the dividend payment date for such class or classes or series of Parity Shares. When dividends are not paid in full or a sum sufficient for such payment is not set apart, as aforesaid, all dividends authorized and declared upon Preferred Shares and all dividends authorized and declared upon any other series or class or classes of Parity Shares shall be authorized and declared ratably in proportion to the respective amounts of dividends accumulated and unpaid on the Preferred Shares and such class or classes or series of Parity Shares. (e) So long as any Preferred Shares are outstanding, no dividends shall be authorized and declared and paid or set apart for payment and no other distribution shall be authorized and declared and made upon Junior Shares (other than dividends or other distributions paid solely in Junior Shares, or options, warrants or rights to subscribe for or purchase Junior Shares), nor shall any Junior Shares be redeemed, purchased or otherwise acquired (other than a redemption, purchase or other acquisition of Common Shares made for purposes of and in compliance with requirements of an employee incentive or benefit plan of the Corporation or any Subsidiary) for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any shares of Common Stock such stock) by the Corporation, directly or indirectly (except by conversion into or exchange for Junior Shares), unless in each case the full cumulative dividends on all outstanding Preferred Shares and any dividend period other Parity Shares shall have been paid or set apart for payment for all past Dividend Periods with respect to the Series A Preferred Stock, then a Shares and all past dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period periods with respect to such Parity Shares. (f) In any case where any dividend payment date shall not be a Dividend Payment Date is Business Day, then (notwithstanding any other provision of this Certificate of Designations) payment of dividends need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the dividend payment date; provided, however, that no interest shall accrue on such amount of dividends for the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) from and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the after such dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendpayment date.

Appears in 2 contracts

Samples: Exchange Agreement (Kadmon Holdings, LLC), Waiver and Consent Agreement (Kadmon Holdings, LLC)

Dividends. (a) Holders The holders of shares of Series A Preferred Stock shall be entitled to receive cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereofdividends, out of the assets of the Company funds legally available therefor, and at a rate of nine percent (9%) per annum, before any dividend or distribution in cash or other property on common stock or any class or series of stock of the Corporation ranking junior to Series A Preferred as to dividends or on liquidation, dissolution or winding-up shall be declared or paid or set apart for payment. (b) Dividends on Series A Preferred shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) March 31, June 30, September 30 and December 31 of each year through December 31, 2013 (each such date being referred to herein as hereinafter individually a “Dividend Payment Date”) at the rate per annum of 6% per share ), except that if such date is a Saturday, Sunday or legal holiday then such dividend shall be payable on the Liquidation Preference; provided thatfirst immediately preceding calendar day which is not a Saturday, in Sunday or legal holiday, to holders of record as they appear on the event that books of the Corporation on any such respective dates, not exceeding sixty (60) days preceding such Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not may be declared determined by the Board of DirectorsDirectors in advance of the payment of each particular dividend. Dividends in arrears may be declared and paid at any time, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, without reference to any dividend which would ordinarily be payable on such succeeding regular Dividend Payment Date), to holders of record on such date as may be fixed by the Board of Directors of the Corporation. Dividends declared and paid in arrears shall be applied first to the earliest dividend period or periods for which any dividends remain outstanding. The amount of dividends payable per share of Series A Preferred for each dividend period shall be computed by dividing the annual rate of 9% by four. Dividends payable on Series A Preferred for the initial dividend period and for any other period that is shorter or longer less than a full semiannual dividend quarterly period will shall be computed and prorated on the basis of a 360-day year consisting of twelve 30-day months. Commencing . (c) If the Corporation is unable to pay a dividend on and following the Meeting End a Dividend Payment Date, the dividend shall be cumulative and shall accrue from and after the date of original issuance thereof, whether or not declared by the Board of Directors. Accrued dividends shall bear interest at a rate of ten percent (10%) per annum. (d) No cash dividend may be declared on any other class or series of stock ranking on a parity or junior with Series A Preferred as to dividends in the event that dividends are paid on shares respect of Common Stock in any dividend period with respect to the unless there shall also be or have been declared and paid on Series A Preferred Stockaccrued, then a unpaid dividends for all quarterly periods coinciding with or ending before such quarterly period, ratably in proportion to the respective annual dividend shall be payable in respect of each share of rates fixed therefor. (e) Dividends on Series A Preferred Stock for such period shall be paid 50% in an amount equal to cash and 50% in shares of fully-paid and nonassessable common stock of the greater Corporation, valued at the market price per share of the common stock of the Corporation. As used in this Section 3, the term “market price” shall mean (i) if the amount common stock is traded on a securities exchange or on the NASDAQ Stock Market, the closing sale price of the common stock on such exchange or the NASDAQ Stock Market, or if the common stock is otherwise payable traded in respect the over-the-counter market, the closing bid price, in each case averaged over a period of such share ninety (90) consecutive trading days prior to the date as of Series A Preferred Stock in accordance with the foregoing paragraph and which “market price” is being determined, (ii) if the product common stock is not traded on an exchange or the NASDAQ Stock Market, or otherwise traded in the over-the-counter market, the higher of (A) the aggregate dividends payable per share book value thereof as determined by any firm of Common Stock in such dividend period times independent public accountants of recognized standing selected by the Board of Directors of the Corporation as of the last day of any month ending within sixty (60) days preceding the date as of which the determination is to be made, or (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which fair value thereof determined in good faith by the Board of Directors or of the Corporation as of a duly authorized committee thereof declares date which is within fifteen (15) days of the date as of which the determination is to be made. (f) Any portion of a dividend that would result in issuance of a fractional share of common stock shall be paid in cash at the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything rate set forth in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend).

Appears in 2 contracts

Samples: Stock Purchase Agreement (Granite City Food & Brewery LTD), Stock Purchase Agreement (Granite City Food & Brewery LTD)

Dividends. (a) Holders of the then outstanding shares of Series A D Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be declared when and as authorized by the Board of Directors or a duly authorized committee thereofDirectors, out of funds legally available for the assets payment of dividends, cumulative preferential cash dividends at the rate of 7.625% of the Company legally available therefor$25.00 liquidation preference per annum (equivalent to a fixed annual amount of $1.90625 per share). Such dividends shall be cumulative from [ • ], 20211 and shall be payable semiannually commencing quarterly in arrears on the 180th day following the Issue Date (or the following Business Day before January 15, April 15, July 15 and October 15 of each year or, if any such payment date is not a Business Day) business day, the next succeeding business day (each such date being referred to herein as each, a “Dividend Payment Date”) at the rate per annum of 6% per share ). Any dividend payable on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable Series D Preferred Stock for any other period that is shorter or longer than a full semiannual partial dividend period will shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders holders of record on as they appear in the stock records of the Corporation at the close of business on the applicable record date, which shall be the last day on which of each of March, June, September and December, as the Board of Directors or a duly authorized committee thereof declares case may be, immediately preceding the dividend payable applicable Dividend Payment Date (each, a “Dividend Record Date”). (b) No dividends on shares of Series D Preferred Stock shall be declared by the Corporation or paid or set apart for payment by the Corporation at such time as the terms and provisions of any agreement of the Corporation, including any agreement relating to its indebtedness, prohibit such declaration, payment or setting apart for payment or provide that such declaration, payment or setting apart for payment would constitute a breach thereof or a default thereunder, or if such declaration or payment shall be restricted or prohibited by law. (c) Notwithstanding the foregoing, dividends on the Series D Preferred Stock shall accrue whether or not the terms and provisions set forth in Section 3(b) hereof at any time prohibit the current payment of dividends, whether or not the Corporation has earnings, whether or not there are funds legally available for the payment of such dividends and whether or not such dividends are declared. Notwithstanding anything Accrued but unpaid dividends on the Series D Preferred Stock shall accumulate as of the Dividend Payment Date on which they first become payable. (d) Except as provided in this Section 3(a3(e) hereof, unless full cumulative dividends on the Series D Preferred Stock have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof is set apart for payment for all past dividend periods and the then current dividend period, no dividends (other than dividends in shares of Common Stock or dividends in shares of any series of Preferred Stock ranking junior to the contrary, Series D Preferred Stock as to dividends and without limiting upon liquidation) shall be declared or paid or set aside for payment nor shall any other remedy distribution be declared or made upon the Common Stock, or any Preferred Stock of the Corporation ranking junior to or on a parity with the Series D Preferred Stock as to dividends or upon liquidation, nor shall any shares of Common Stock, or any shares of Preferred Stock of the Corporation ranking junior to or on a parity with the Series D Preferred Stock as to dividends or upon liquidation be redeemed, purchased or otherwise acquired for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any such shares) by the Corporation (except by conversion into or exchange for other capital stock of the Corporation ranking junior to the Company Series D Preferred Stock as to dividends and upon liquidation and except for transfers made pursuant to the provisions of Article VII of the Charter). (e) When dividends are not paid in full (or a sum sufficient for such full payment is not so set apart) on the Series D Preferred Stock and the shares of any other partyseries of Parity Stock, all dividends declared upon the Series D Preferred Stock and the shares of any other series of Parity Stock shall be declared pro rata so that the amount of dividends declared per share of Series D Preferred Stock and the shares of any other series of Parity Stock shall in all cases bear to each other the same ratio that accrued dividends per share on the Series D Preferred Stock and the shares of any other series of Parity Stock (which shall not accrue include any accrual in respect of unpaid dividends for prior dividend periods if such preferred stock does not have a cumulative dividend) bear to each other. No interest, or sum of money in lieu of interest, shall be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote dividend payment or payments on Series D Preferred Stock which may be in favor of any proposal made at a meeting of stockholders arrears. 1 To be the last dividend payment date before the Effective Time of the Company in order to effect the Stockholder Approval Merger (or whose transferor Holder was so obligated) provided that if such Holder Effective Time occurs after the dividend record date for a dividend and before the dividend payment date for such dividend, such date shall be the dividend payment date for such dividend). (or such transferor Holder or f) Any dividend payment made on shares of the Affiliates of either) fails so to appear and vote in favor. Any shares issued Series D Preferred Stock shall first be credited against the earliest accrued but unpaid dividend due with respect to such shares which remains payable. Holders of Series D Preferred Stock shall bear not be entitled to any dividend, whether payable in cash, property or stock in excess of full cumulative dividends on the Stockholder Approval LegendSeries D Preferred Stock as described above.

Appears in 2 contracts

Samples: Merger Agreement (Ready Capital Corp), Merger Agreement (Ready Capital Corp)

Dividends. (a) Holders of shares of Series A Preferred Stock The Borrower shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefornot, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if not permit any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided thatits Subsidiaries to, in the event that on any Dividend Payment Dateauthorize, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period Dividends with respect to the Series A Preferred StockBorrower or any of its Subsidiaries, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of except that: (i) Subsidiaries of the amount otherwise Borrower may pay Dividends to another member of the NCLC Group; provided that the Borrower shall procure that any Dividends or other distributions and interest paid or payable in respect connection with such Dividends or other distributions to NCL International Ltd., NCL America Holdings, Inc. or Arrasas Limited shall be received promptly by the Borrower directly or indirectly by way of such share of Series A Preferred Stock in accordance with the foregoing paragraph and Dividend; (ii) the product Borrower may pay Dividends in respect of (A) the aggregate dividends payable per share tax liability to each relevant jurisdiction in respect of Common Stock in such dividend period times (B) consolidated, combined, unitary or affiliated tax returns for each relevant jurisdiction of the number NCLC Group or holder of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period the Borrower’s capital stock with respect to income taxable as a Dividend Payment Date is result of any member of the NCLC Group being taxed as a pass-through entity for U.S. Federal, state and local income tax purposes or attributable to any member of the NCLC Group; and (iii) at any time following the listing of the ordinary capital stock of the Borrower on an Approved Stock Exchange, the Borrower may pay Dividends in an amount not to exceed 50% of Consolidated Net Income of the Borrower and its Subsidiaries for the period (taken as one period) commencing on the preceding Dividend Payment Date (orJanuary 1, if there is no preceding Dividend Payment Date, the Issue Date) 2010 and ending on the day immediately date prior to such Dividend for which financial statements are available so long as (x) no Default or Event or Default exists or would result from such Dividend and (y) at the next time of such Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable and after giving effect thereto the ratio of Total Net Funded Debt to Holders of record on Consolidated EBITDA for the close of business on the day on four consecutive fiscal quarters last ended for which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) financial statements have been provided to the contrary, and without limiting any other remedy available Administrative Agent pursuant to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who Section 8.01 is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendless than [*].

Appears in 2 contracts

Samples: Credit Agreement (NCL CORP Ltd.), Credit Agreement (NCL CORP Ltd.)

Dividends. (a) Holders of a. The Preferred Stock, which hereby is designated as New Preferred Stock, is to be issued pursuant to the Merger for issued and outstanding shares of Series A new preferred stock, $.01 par value, of the Missouri Predecessor Corporation (the "Predecessor Corporation New Preferred Stock"), at the effective time of the Merger, whereby each share of Predecessor Corporation New Preferred Stock issued and outstanding at the time of the Merger is to be converted into one share of New Preferred Stock of this Corporation. For all purposes of this Certificate of Designation, each share of New Preferred Stock of this Corporation issued in connection with the Merger shall be deemed to have been issued as of the date of issuance of the share of Predecessor Corporation New Preferred Stock for which it was converted in the Merger, and all dividends paid or accrued by the Predecessor Corporation in respect of each share of Predecessor Corporation New Preferred Stock shall be deemed to have been paid or accrued in respect of the share of New Preferred Stock for which it was converted. By way of further clarification, the rights of each share of New Preferred Stock, with respect to dividends (including the accumulation thereof) and liquidation preference, shall be the same as the Predecessor Corporation New Preferred Stock for which the New Preferred Stock was converted in the Merger. b. The holders of the shares of New Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be when and as declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company funds legally available therefortherefore, cumulative dividends at the annual rate of 9.25% per annum (the "NP Dividend Rate") which shall accrue daily and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-365 day year consisting or a 366 day year, as applicable, on the NP Base Amount (which, except as provided in paragraph 2(e) below, shall initially be and shall never be less than $1,000 per share, the "NP Base Amount") and no more (except as specifically provided below), in annual payments on each July 1 (each of twelve 30-day months. Commencing on and such dates being a "NP Dividend Payment Date"), commencing with the first NP Dividend Payment Date following the Meeting End date of issuance (the "Issuance Date, in the event that dividends are paid on ") of shares of Common Stock in any dividend period with respect to the Series A New Preferred Stock, payable as set forth hereinafter. If the NP Dividend Payment Date is not a Business Day (as defined herein), then a such dividend shall be payable in on the next succeeding Business Day. The dividend payable on the first NP Dividend Payment Date following an Issuance Date with respect of each to any issued and outstanding share of Series A New Preferred Stock for such period in an shall be the pro rata amount equal to of the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) NP Dividend Rate based upon the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend days in the period with respect from an Issuance Date to a the first NP Dividend Payment Date is following such Issuance Date (the period commencing "Dividend Period"). Dividends on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior New Preferred Stock shall be paid to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders holders of record on at the close of business on the day on which date specified by the Board of Directors or a duly authorized committee thereof declares of the Corporation at the time such dividend payable (eachis declared; provided, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) that such date shall not be more than 60 days nor less than 10 days prior to the contraryrespective NP Dividend Payment Date. Dividends shall be fully cumulative and shall accrue (whether or not declared and whether or not funds are legally available for the payment of dividends) from the first day of the Dividend Period as to which such dividend may be payable as herein provided. Accrued dividends which are not paid on an NP Dividend Payment Date shall be added to the NP Base Amount on that NP Dividend Payment Date. The NP Base Amount shall be reduced (but not below $1,000 per share) by the amount of cumulated dividends when such accumulated dividends shall have been paid. Business Day shall mean each day which is neither a Saturday, Sunday nor another day on which banking institutions in New York, New York or St. Louis, Missouri are legally authorized or required to close. c. Dividends on the New Preferred Stock shall be payable solely in cash. d. All dividends paid with respect to shares of New Preferred Stock pursuant to paragraphs (2)(a), 2(b) and (2)(c) shall be paid pro rata and in like manner to all holders entitled thereto. e. Unless full, cumulated dividends have been or contemporaneously are declared and paid on the New Preferred Stock through the most recent NP Dividend Payment Date, the Corporation shall not declare or pay on any shares of the Corporation's Common Stock any dividend, whether in cash, property or otherwise (other than solely in additional Common Stock), nor shall the Corporation make any distribution on any Common Stock or any warrants, rights or options exercisable for any Common Stock or set aside any assets for such purpose (other than solely in additional Common Stock), nor shall the Corporation purchase, redeem or otherwise acquire any Common Stock or any warrants, rights or options exercisable for any Common Stock (other than in exchange for additional Common Stock). f. Subject to the foregoing provisions of this paragraph 2, the Board of Directors may declare and the Corporation may pay or set apart for payment dividends and other distributions on any Common Stock or any warrants, rights or options exercisable for any Common Stock, and without limiting may purchase, redeem or otherwise acquire any other remedy available to the Company Common Stock or any other partywarrants, dividends rights or options exercisable for any Common Stock and set aside assets for such purpose, and the holders of the shares of the New Preferred Stock shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated entitled to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendshare therein.

Appears in 2 contracts

Samples: Merger Agreement (American Railcar Industries, Inc./De), Merger Agreement (American Railcar Industries, Inc./De)

Dividends. (a) Holders Upon the grant of shares of Series A Preferred Stock Common Shares pursuant to Section 2(b)(ii), the Grantee shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (andreceive, for the avoidance of doubteach Common Share granted, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater 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 Termination of Employment of the Grantee. After the date of grant of the Common Shares pursuant to Section 2(b)(ii), the holder of such Common Shares shall be entitled to receive dividends in the same manner as dividends are paid to all other holders of Common Shares. (ib) Upon the grant of Common Shares pursuant to Section 2(b)(iii), the Grantee shall be entitled to receive, 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 Change in Control. After the date of grant of the Common Shares pursuant to Section 2(b)(iii), the holder of such Common Shares shall be entitled to receive dividends in the same manner as dividends are paid to all other holders of Common Shares. (c) Upon grant of the 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 declared with respect to the Common Shares with a record date on or after the Effective Date and before the Share Issuance Date (other than those with respect to which an adjustment was made pursuant to Section 6); provided that, notwithstanding the foregoing, if on the Valuation Date the Total Return to Shareholders exceeds the Maximum Total Return to Shareholders, then the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (iiGrantee shall be entitled to receive pursuant to this Section 4(c) shall equal the product of (Aa) the aggregate dividends payable per share amount of all dividends declared with respect to the Common Stock in such dividend period times Shares with a record date on or after the Effective Date and before Share Issuance Date (Bother than those with respect to which an adjustment was made pursuant to Section 6) and (b) the number of shares Restricted Shares the Grantee would have received had the Total Return to Shareholders equaled the Maximum Total Return to Shareholders on the Valuation Date. After the Share Issuance Date, the holder of Common Stock into which such Restricted Shares (whether vested or unvested) shall be entitled to receive the per share amount of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period any dividends declared with respect to a Dividend Payment Date is the period commencing Common Shares for each Restricted Share (whether vested or unvested) held on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, record date of each such dividend and each such dividend shall be paid in the Issue Date) and ending on the day immediately prior same manner as dividends are paid to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable Common Shares. (each, a “Dividend Record Date”). Notwithstanding anything d) Except as provided in this Section 3(a) to 4, the contrary, and without limiting any other remedy available to the Company or any other party, dividends Grantee shall not accrue be entitled to receive any payments in lieu of or be payable in connection with dividends with respect of shares initially issued to any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendNotional Units and/or Restricted Shares.

Appears in 2 contracts

Samples: Notional Unit Award Agreement (Tanger Properties LTD Partnership /Nc/), Notional Unit Award Agreement (Tanger Factory Outlet Centers Inc)

Dividends. (a1) Holders of shares of the Series A F Preferred Stock shall be are entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be declared when, as, and if authorized by the Board of Directors or a duly authorized committee thereofand declared by the Corporation, out of the assets funds of the Company Corporation legally available thereforfor the payment of dividends, cumulative cash dividends at the rate of 6.70% of the Liquidation Preference (as defined below) per annum per share (equivalent to an annual rate of $1.675 per share). Dividends on the Series F Preferred Stock shall accrue daily, shall accrue and be cumulative from [___], 2013 (the “Original Issue Date”) and shall be payable semiannually commencing monthly in arrears on the 180th 15th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) of each month (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preferencecommencing [___] 15, 2013; provided that, in the event that on if any Dividend Payment Date, the Company Date is not permitted to declare or pay a Business Day (as defined below), then the dividend which would otherwise have been payable on such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not Dividend Payment Date may be paid or payable on the next succeeding Business Day with the same force and effect as if paid on such Dividend Payment Date and no liability interest or additional dividends or other sum shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred accrue on the first succeeding amount so payable for the period from and after such Dividend Payment Date on which to such next succeeding Business Day. The period from and including the Company is not prohibited from declaring, paying and incurring Original Issue Date to but excluding the liability in respect of such Deferred first Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition toPayment Date, and not in lieu of, any dividend which would ordinarily be payable on such each subsequent period from and including a Dividend Payment Date to but excluding the next succeeding Dividend Payment Date). The amount of , is hereafter called a “Dividend Period.” Any dividend payable on the Series F Preferred Stock, including dividends payable for any other period that is shorter or longer than a full semiannual partial dividend period period, will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following ; provided that the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing payable on the preceding Dividend Payment Date (or, if there is no preceding first Dividend Payment Date, which shall be [___] 15, 2013, will be equal to the Issue Datesum of (1) and ending the regular monthly dividend per share plus (2) the pro rated portion of the regular monthly dividend per share which shall be calculated based on the number of days from and including the Original Issue Date to but excluding [___] 15, 2013 (computed on the basis of a 360-day immediately prior to the next Dividend Payment Dateyear consisting of twelve 30-day months). Dividends payable on a Dividend Payment Date shall will be payable to Holders holders of record on as they appear in the stock records of the Corporation at the close of business on the applicable record date, which shall be the first day on of the calendar month, whether or not a Business Day, in which the Board of Directors or a duly authorized committee thereof declares the dividend payable applicable Dividend Payment Date falls (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) any provision to the contrarycontrary contained in these terms of the Series F Preferred Stock, each outstanding share of Series F Preferred Stock shall be entitled to receive, and without limiting shall receive, a dividend with respect to any Dividend Record Date equal to the greatest amount payable as a dividend with respect to any other remedy available share of Series F Preferred Stock which is outstanding on such date. The dividends payable on any Dividend Payment Date shall include dividends accrued to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if but excluding such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendDividend Payment Date.

Appears in 2 contracts

Samples: Agreement and Plan of Merger (American Realty Capital Properties, Inc.), Agreement and Plan of Merger (American Realty Capital Trust IV, Inc.)

Dividends. (a) Holders Subject to Section E below, the holders of shares of Series A Convertible Preferred Stock Stock, in preference to the holders of any Junior Securities other than Common Stock, shall be entitled to cumulative receive mandatory cash dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition an As-Converted-to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30Common-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period -Basis in an amount equal to the greater cash dividends declared by the Board on the Common Stock out of (i) funds of the amount otherwise payable in respect of such share of Series A Corporation legally available therefor, but only as, when, and if so declared. The Convertible Preferred Stock in accordance with will not accrue dividends until and unless the foregoing paragraph and (ii) date on which the product holders of (A) Capital Stock of the aggregate dividends payable per share Corporation do not approve the Merger at the first meeting of Common Stock in such dividend period times (B) the number of shares of Common Stock into stockholders upon which such share of Series A Preferred Stock matter is then convertible. For purposes of this Section 3(a), submitted for a dividend period with respect to a Dividend Payment Date is vote after the period commencing date hereof or otherwise on the preceding 60th day following the closing of the Exchange Offer if the Merger has not been consummated by such date (the “Dividend Payment Accrual Date”). Beginning on and following such Dividend Accrual Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior date upon which the Merger becomes effective, the Convertible Preferred Stock shall accrue cumulative dividends on its Liquidation Preference at an annual rate of 20%, which shall be added to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders Liquidation Preference of record such Convertible Preferred Stock on the close last day of business each calendar quarter (i.e., March 31, June 30, September 30 and December 31) (all dividends on Convertible Preferred Stock described in this Section D declared or accrued but remaining unpaid and which have not been added to the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a Liquidation Preference pursuant to this Section D being referred to herein as Dividend Record DateAccrued Dividends”). Notwithstanding anything in All dividend accruals pursuant to this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends D shall be based on a 365-day year. Any Accrued Dividends shall not accrue or bear interest. Accrued but unpaid dividends may be payable in respect of shares initially issued declared and paid at any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendtime.

Appears in 2 contracts

Samples: Certificate of Designations, Preferences, Powers and Rights of Series B Convertible Preferred Stock (USFreightways Corp), Certificate of Designations, Preferences, Powers and Rights of Series B Convertible Preferred Stock (USFreightways Corp)

Dividends. (a) Holders of shares 3.1. The holders of Series A E Preferred Stock Shares shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be declared when, as and if authorized by the Board of Directors or a duly authorized committee thereof, and declared by the Corporation out of funds legally available for that purpose, dividends payable in cash at the assets Annual Dividend Rate. All dividends shall be cumulative from the date such Series E Preferred Shares are issued (but shall include accrued but unpaid dividends on the Series D Preferred Shares that have been exchanged for the Series E Preferred Shares), whether or not in any Dividend Period or Periods there shall be funds of the Company Corporation legally available thereforfor the payment of such dividends, and shall be payable semiannually monthly, when, as and if authorized and declared, in arrears on Dividend Payment Dates, commencing on the 180th day following first Dividend Payment Date after the Issue date such Series E Preferred Shares are issued. Each such dividend shall be payable in arrears to the holders of record of the Series E Preferred Shares, as they appear on the stock records of the Corporation at the close of business on each record date, which shall not be more than 30 days preceding the applicable Dividend Payment Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Record Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that), in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared fixed by the Board of Directors. Accrued and unpaid dividends for any past Dividend Periods may be authorized and declared and paid at any time, without reference to any regular Dividend Payment Date, to holders of record on such date, which shall not be paid or payable more than 45 days preceding the payment date thereof, as may be fixed by the Board of Directors. The amount of accrued and unpaid dividends on such Dividend Payment Date and no liability any Series E Preferred Share at any date shall be incurred in respect thereofthe amount of any dividends thereon calculated at the applicable rate to and including such date, and instead, such Deferred Dividend shall be whether or not earned or declared, become payable and be which have not been paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date)cash. 3.2. The amount of dividends payable for each full Dividend Period for the Series E Preferred Shares shall be computed by dividing the Annual Dividend Rate by twelve. The amount of dividends payable for the initial Dividend Period, or any other period that is shorter or longer than a full semiannual dividend period will Dividend Period, on the Series E Preferred Shares shall be computed on the basis of twelve 30-day months and a 360-day year consisting year. Holders of twelve 30-day months. Commencing on and following the Meeting End DateSeries E Preferred Shares shall not be entitled to any dividends, whether payable in cash, property or stock, in excess of cumulative dividends, as herein provided, on the event that Series E Preferred Shares, except for any other amounts provided herein. 3.3. So long as any Series E Preferred Shares are outstanding, no dividends, except as described in the immediately following sentence, shall be authorized and declared and paid or set apart for payment on any series or class or classes of Parity Shares for any period unless full cumulative dividends have been or contemporaneously are authorized and declared and paid or authorized and declared and a sum sufficient for the payment thereof set apart for such payment on the Series E Preferred Shares for all Dividend Periods prior to the dividend payment date for such class or classes or series of Parity Shares. When dividends are not paid in full or a sum sufficient for such payment is not set apart, as aforesaid, all dividends authorized and declared upon Series E Preferred Shares and all dividends authorized and declared upon any other series or class or classes of Parity Shares shall be authorized and declared ratably in proportion to the respective amounts of dividends accumulated and unpaid on the Series E Preferred Shares and such class or classes or series of Parity Shares. 3.4. So long as any Series E Preferred Shares are outstanding, no dividends shall be authorized and declared and paid or set apart for payment or other distribution authorized and declared and made upon Junior Shares (other than dividends or other distributions (i) paid in respect of the Common Shares issued pursuant to the Securities Purchase Agreement or stock issued pursuant to the Contingent Value Rights Agreement or (ii) paid solely in Junior Shares, or options, warrants or rights to subscribe for or purchase Junior Shares), nor shall any Junior Shares be redeemed, purchased or otherwise acquired (other than (i) a redemption, purchase or other acquisition of Common Shares made for purposes of and in compliance with requirements of an employee incentive or benefit plan of the Corporation or any subsidiary or (ii) a purchase or other acquisition of Common Shares made in connection with the restrictions on ownership and transfer set forth in Section 4.07 of the Charter), for any consideration (or any moneys to be paid to or made available for a sinking fund for the redemption of any shares of Common Stock such stock) by the Corporation, directly or indirectly (except by conversion into or exchange for Junior Shares), unless in each case the full cumulative dividends on all outstanding Series E Preferred Shares and any dividend period other Parity Shares shall have been paid or set apart for payment for all past Dividend Periods with respect to the Series A E Preferred Stock, then a Shares and all past dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period periods with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendParity Shares.

Appears in 2 contracts

Samples: Convertible Preferred Stock Purchase Agreement (American Realty Capital Properties, Inc.), Common Stock Purchase Agreement (American Realty Capital Properties, Inc.)

Dividends. (a) Holders of shares 3.1. The holders of Series A D Preferred Stock Shares shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be declared when, as and if authorized by the Board of Directors or a duly authorized committee thereof, and declared by the Corporation out of funds legally available for that purpose, dividends payable in cash at the assets Annual Dividend Rate. All dividends shall be cumulative from the Issue Date, whether or not in any Dividend Period or Periods there shall be funds of the Company Corporation legally available thereforfor the payment of such dividends, and shall be payable semiannually monthly, when, as and if authorized and declared, in arrears on Dividend Payment Dates, commencing on the 180th day following first Dividend Payment Date after the Issue Date. Each such dividend shall be payable in arrears to the holders of record of the Series D Preferred Shares, as they appear on the stock records of the Corporation at the close of business on each record date, which shall not be more than 30 days preceding the applicable Dividend Payment Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Record Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that), in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared fixed by the Board of Directors. Accrued and unpaid dividends for any past Dividend Periods may be authorized and declared and paid at any time, without reference to any regular Dividend Payment Date, to holders of record on such date, which shall not be paid or payable more than 45 days preceding the payment date thereof, as may be fixed by the Board of Directors. The amount of accrued and unpaid dividends on such Dividend Payment Date and no liability any Series D Preferred Share at any date shall be incurred in respect thereofthe amount of any dividends thereon calculated at the applicable rate to and including such date, and instead, such Deferred Dividend shall be whether or not earned or declared, become payable and be which have not been paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date)cash. 3.2. The amount of dividends payable for each full Dividend Period for the Series D Preferred Shares shall be computed by dividing the Annual Dividend Rate by twelve. The amount of dividends payable for the initial Dividend Period, or any other period that is shorter or longer than a full semiannual dividend period will Dividend Period, on the Series D Preferred Shares shall be computed on the basis of twelve 30-day months and a 360-day year consisting year. Holders of twelve 30-day months. Commencing on and following the Meeting End DateSeries D Preferred Shares shall not be entitled to any dividends, whether payable in cash, property or stock, in excess of cumulative dividends, as herein provided, on the event that Series D Preferred Shares, except for any other amounts provided herein. 3.3. So long as any Series D Preferred Shares are outstanding, no dividends, except as described in the immediately following sentence, shall be authorized and declared and paid or set apart for payment on any series or class or classes of Parity Shares for any period unless full cumulative dividends have been or contemporaneously are authorized and declared and paid or authorized and declared and a sum sufficient for the payment thereof set apart for such payment on the Series D Preferred Shares for all Dividend Periods prior to the dividend payment date for such class or classes or series of Parity Shares. When dividends are not paid in full or a sum sufficient for such payment is not set apart, as aforesaid, all dividends authorized and declared upon Series D Preferred Shares and all dividends authorized and declared upon any other series or class or classes of Parity Shares shall be authorized and declared ratably in proportion to the respective amounts of dividends accumulated and unpaid on the Series D Preferred Shares and such class or classes or series of Parity Shares. 3.4. So long as any Series D Preferred Shares are outstanding, no dividends shall be authorized and declared and paid or set apart for payment or other distribution authorized and declared and made upon Junior Shares (other than dividends or other distributions (i) paid in respect of the Common Shares issued pursuant to the Securities Purchase Agreement or stock issued pursuant to the Contingent Value Rights Agreement or (ii) paid solely in Junior Shares, or options, warrants or rights to subscribe for or purchase Junior Shares), nor shall any Junior Shares be redeemed, purchased or otherwise acquired (other than (i) a redemption, purchase or other acquisition of Common Shares made for purposes of and in compliance with requirements of an employee incentive or benefit plan of the Corporation or any subsidiary or (ii) a purchase or other acquisition of Common Shares made in connection with the restrictions on ownership and transfer set forth in Section 4.07 of the Charter), for any consideration (or any moneys to be paid to or made available for a sinking fund for the redemption of any shares of Common Stock such stock) by the Corporation, directly or indirectly (except by conversion into or exchange for Junior Shares), unless in each case the full cumulative dividends on all outstanding Series D Preferred Shares and any dividend period other Parity Shares shall have been paid or set apart for payment for all past Dividend Periods with respect to the Series A D Preferred Stock, then a Shares and all past dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period periods with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendParity Shares.

Appears in 2 contracts

Samples: Convertible Preferred Stock Purchase Agreement (American Realty Capital Properties, Inc.), Common Stock Purchase Agreement (American Realty Capital Properties, Inc.)

Dividends. USI and the Borrower will not, nor will they permit any Subsidiary to, declare or pay any dividend or make any distribution on its capital stock (other than dividends payable in its own capital stock) or redeem, repurchase or otherwise acquire or retire any of its capital stock at any time outstanding, except that (i) any Subsidiary of the Borrower may declare and pay dividends or make distributions to the Borrower or to any other Subsidiary of the Borrower, (ii) any Subsidiary of the Borrower which is not a Wholly-Owned Subsidiary may pay dividends to its shareholders generally so long as the 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, (iii) the Borrower may declare and make dividends or distributions to USI to enable USI to, and USI may (a) Holders pay any income, franchise or like taxes, (b) pay its operating expenses (including, without limitation, legal, accounting, reporting, listing and similar expenses) in an aggregate amount not exceeding $5,000,000 in any fiscal year (excluding in any event non-cash charges related to employee compensation or compensation to non-executive members of shares USI’s board of Series A Preferred Stock directors) and (c) so long as no Default or Unmatured Default shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallycontinuing or result therefrom, which dividends repurchase its common stock and warrants and/or redeem or repurchase vested management options, in each case, from directors, officers and employees of USI and its Subsidiaries, and (iv) so long as no Default or Unmatured Default shall be declared by continuing or result therefrom, the Board Borrower may make distributions to USI and USI may redeem, repurchase, acquire or retire an amount of Directors its capital stock or a duly authorized committee thereof, out of the assets of the Company legally available warrants or options therefor, or declare and shall be payable semiannually commencing pay any dividend or make any distribution on the 180th day following the Issue Date its capital stock (or the following Business Day collectively, “Distributions”), either (a) if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum time of 6% per share making such Distribution the Leverage Ratio (calculated on a pro forma basis based on USI’s most recent financial statements delivered pursuant to Section 6.1 and giving effect to any Permitted Acquisition since the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay date of such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreementfinancial statements, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date Distribution and no liability shall be any Indebtedness incurred in respect thereofconnection therewith, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock all in accordance with the foregoing paragraph terms of this Agreement) is less than to 3.00 to 1.00, on an unlimited basis, and (iib) if at the product time of making such Distribution the Leverage Ratio (A) calculated on a pro forma basis based on USI’s most recent financial statements delivered pursuant to Section 6.1 and giving effect to any Permitted Acquisition since the aggregate dividends payable per share date of Common Stock such financial statements, such Distribution and any Indebtedness incurred in such dividend period times (B) connection therewith, all in accordance with the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes terms of this Section 3(a), a dividend period with respect Agreement) is greater than or equal to a Dividend 3.00 to 1.00 in an amount not greater than the Maximum Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendAmount.

Appears in 2 contracts

Samples: Five Year Revolving Credit Agreement, Five Year Revolving Credit Agreement (United Stationers Inc)

Dividends. (a) Holders of In the event that a distribution with respect to the shares of Series A Preferred REIT I 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 REIT I 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 REIT 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 REIT II Common Stock on the Closing Date immediately prior to the REIT Merger Effective Time. REIT I shall coordinate with REIT II the declaration of, and the setting of record dates and payment dates for, dividends on REIT I Common Stock so that holders of REIT I Common Stock and REIT I OP Units (i) do not receive dividends on both REIT I Common Stock and REIT II Common Stock received in the REIT Merger, or REIT I OP Units and REIT II OP Units received in the Partnership Merger, as applicable, in respect of a single calendar quarter or fail to receive a dividend on either REIT I Common Stock or REIT II Common Stock received in the REIT Merger, or REIT I OP Units and REIT II OP Units received in the Partnership Merger, as applicable, in respect of a single calendar quarter or (ii) do not receive both a dividend permitted by the proviso to Section 6.1(b)(iii) on REIT I Common Stock or REIT I OP Units and a dividend permitted by the proviso to Section 6.2(b)(iii) on REIT II Common Stock or REIT II OP Units received in the Mergers or fail to receive either a dividend permitted by the proviso to Section 6.1(b)(iii) on REIT I Common Stock or REIT I OP Units or a dividend permitted by the proviso to Section 6.2(b)(iii) on REIT II Common Stock, or REIT II OP Units received in the Mergers. (b) In the event that either REIT I or REIT II 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 cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or declare a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% dividend per share on the Liquidation Preference; provided that, payable (i) in the event that on any Dividend Payment Datecase of REIT I, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter holders of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of REIT I Common Stock in any dividend period with respect to the Series A Preferred Stockor REIT I OP Units, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount per share of REIT I Common Stock or per REIT I OP Unit equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per dividend declared by REIT II with respect to each share of REIT II Common Stock in such dividend period times by (B) the number Exchange Ratio and (ii) in the case of shares REIT II, to holders of REIT II Common Stock into which such and REIT II OP Units, in an amount per share of Series A Preferred REIT II Common Stock is then convertible. For purposes of this Section 3(a), a or per REIT II OP Unit equal to the quotient obtained by dividing (x) the dividend period declared by REIT I with respect to a Dividend Payment Date is each share of REIT I Common Stock by (y) the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue DateExchange Ratio. The record date and time and payment date and time for any dividend payable pursuant to this Section 7.8(b) and ending on the day immediately shall be prior to the next Dividend Payment Closing Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.

Appears in 2 contracts

Samples: Merger Agreement (Moody National REIT I, Inc.), Agreement and Plan of Merger (Moody National REIT II, Inc.)

Dividends. (a) Holders of In the event that a distribution with respect to the shares of Series A Preferred REIT I 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 REIT I 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 REIT II 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 REIT II Common Stock on the Closing Date immediately prior to the Merger Effective Time. REIT I shall coordinate with REIT II the declaration of, and the setting of record dates and payment dates for, dividends on REIT I Common Stock so that holders of REIT I Common Stock (i) do not receive dividends on both REIT I Common Stock and REIT II Common Stock received in the Merger, or, in respect of a single calendar quarter or fail to receive a dividend on either REIT I Common Stock or REIT II Common Stock received in the Merger, or (ii) do not receive both a dividend permitted by the proviso to Section 6.1(b)(iii) on REIT I Common Stock and a dividend permitted by the proviso to Section 6.2(b)(iv) on REIT II Common Stock received in the Merger or fail to receive either a dividend permitted by the proviso to Section 6.1(b)(iii) on REIT I Common Stock or a dividend permitted by the proviso to Section 6.2(b)(iv) on REIT II Common Stock received in the Merger. (b) In the event that either REIT I or REIT II 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)(iv), 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 cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or declare a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% dividend per share on the Liquidation Preference; provided that, payable (i) in the event that on any Dividend Payment Datecase of REIT I, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter holders of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of REIT I Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each an amount per share of Series A Preferred REIT I Common Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per dividend declared by REIT II with respect to each share of REIT II Common Stock in such dividend period times by (B) the number Exchange Ratio and (ii) in the case of shares REIT II, to holders of REIT II Common Stock, in an amount per share of REIT II Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a equal to the quotient obtained by dividing (x) the dividend period declared by REIT I with respect to a Dividend Payment Date is each share of REIT I Common Stock by (y) the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue DateExchange Ratio. The record date and time and payment date and time for any dividend payable pursuant to this Section 7.8(b) and ending on the day immediately shall be prior to the next Dividend Payment Closing Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.

Appears in 2 contracts

Samples: Merger Agreement (MVP REIT, Inc.), Merger Agreement (MVP REIT II, Inc.)

Dividends. Dividends that become payable on Restricted Shares -------------------- shall be held by the Company in escrow in accordance with the provisions of this Agreement. In this connection, on each Common Stock dividend payment date while the Restricted Shares remain outstanding and restricted hereunder (a) Holders each, a "RS Dividend Date"), the Company shall be deemed to have reinvested any cash dividend otherwise then payable on the Restricted Shares in a number of phantom shares of Series A Preferred Common Stock (including any fractional share) equal to the quotient of such dividend divided by the Market Value of a share of Common Stock on such RS Dividend Date and to have credited such shares to an unfunded book account in the Grantee's name (the "Dividend Escrow Account"). As of each subsequent RS Dividend Date, the phantom shares then credited to the Dividend Escrow Account shall be entitled deemed to cumulative dividends on receive a dividend at the Series A Preferred Stock payable semiannuallythen applicable dividend rate, which dividends shall be declared reinvested in the same manner in such account in the form of additional phantom shares. If any dividend payable on any RS Dividend Date is paid in the form of Common Stock, then any such stock dividend shall be treated as additional Restricted Shares under this Agreement, with such additional Restricted Shares being subject to the same vesting and other restrictions as the Restricted Shares with respect to which dividends became payable, and with any fractional share being treated as a cash dividend that is subject to the escrow and reinvestment procedures in this Section 4. Any other non-cash dividends credited with respect to Restricted Shares shall be subject to the escrow and reinvestment procedures in this Section 4, and shall be valued for purposes of this Section 4 at the fair market value thereof as of the relevant RS Dividend Date, as determined by the Compensation Committee of the Board of Directors or a duly authorized committee thereof, out of (the assets of "Committee") in its sole discretion. On the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Vesting Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter shall deliver out of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect escrow to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the Grantee that whole number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior equal to the next whole number of phantom shares then credited to the Dividend Payment DateEscrow Account as the result of the deemed investment and reinvestment in phantom shares of the dividends attributable to the Restricted Shares. Dividends payable on a Dividend Payment Date The value of any fractional share shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything paid in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendcash.

Appears in 2 contracts

Samples: Restricted Share Agreement (Claiborne Liz Inc), Restricted Share Agreement (Claiborne Liz Inc)

Dividends. (a) Holders As part of shares the Acquisition, the boards of Series A Preferred Stock shall be entitled Keysight and Spirent have agreed the declaration and payment of the Permitted Dividend in lieu of a final dividend for the year ended 31 December 2023. The Permitted Dividend is intended and expected to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Spirent Board and will be payable to Spirent Shareholders at any time before the Effective Date (or, if the Acquisition is implemented by way of Directors a Takeover Offer, at any time before the Takeover Offer becomes or a duly authorized committee thereof, out is declared unconditional) to Spirent Shareholders on the register of members at the relevant record date. Payment of the assets Permitted Dividend is not conditional upon the Effective Date occurring. In addition to the Permitted Dividend, the Spirent Board will be entitled (if it sees fit) to declare and approve the payment of a dividend to Spirent Shareholders of up to 1.0 xxxxx per Spirent Share if the Effective Date has not occurred by 30 June 2025. If declared, the Additional Dividend will be payable at any time thereafter and before the Effective Date (or, if the Acquisition is implemented by way of a Takeover Offer, at any time before the Takeover Offer becomes or is declared unconditional) to Spirent Shareholders on the register of members at the relevant record date. Payment of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date Additional Dividend is not a Business Day) (each such date being referred to herein as a “conditional upon the Effective Date occurring. Keysight and Spirent have agreed that the Spirent Board may declare and pay the Permitted Dividend Payment Date”) at and the rate per annum of 6% per share on the Liquidation Preference; provided that, Additional Dividend without any reduction in the event that Acquisition Price. If, on any Dividend Payment or after the date of this announcement and prior to the Effective Date, any dividend, distribution, or other return of capital is declared, made, or paid or becomes payable by Spirent (other than the Company is not permitted Permitted Dividend and/or the Additional Dividend), Keysight reserves the right to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) reduce the Acquisition Price payable under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, Acquisition for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in Spirent Shares by an amount equal to the greater amount of (i) the amount otherwise payable in respect any such dividend, distribution or other return of capital. In such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Datecircumstances, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date Spirent Shareholders shall be payable entitled to Holders retain any such dividend, distribution, or other return of record on the close of business on the day on which the Board of Directors value declared, made, or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendpaid.

Appears in 2 contracts

Samples: Co Operation Agreement, Co Operation Agreement

Dividends. (a) Holders The holders of shares of Series A Preferred Stock shall be entitled to cumulative dividends on the receive with respect to each share of Series A Preferred Stock payable semiannuallyStock, which dividends shall be when, as and if declared by the Board of Directors or a duly authorized committee thereofDirectors, out of funds legally available for the assets payment of dividends, cumulative dividends at a rate per annum equal to two percent (2%) of the Company then effective Liquidation Preference per share, payable in (A) cash, (B) additional shares of Series A Preferred Stock (ADDITIONAL SHARES) or (C) any combination of the foregoing in accordance with the terms of this paragraph 4; provided, however, that dividends must be payable solely in cash unless, with respect to each Dividend Payment Date (as hereinafter defined) on which the Corporation elects to pay all or a portion of the applicable dividend in Additional Shares, the Corporation delivers to the holders a certified resolution of the Board of Directors of the Corporation finding that payment of the dividend solely in cash would materially adversely affect the financial condition of the Corporation; and provided, further, however that the Corporation may not issue Additional Shares in lieu of cash dividends unless sufficient shares of Series A Preferred Stock remain authorized and available for issuance. Such dividends shall be cumulative from the Issue Date regardless of when actually issued (except that dividends on Additional Shares shall accrue from the date such Additional Shares are issued), whether or not in any Dividend Period or Dividend Periods there shall be funds of the Corporation legally available thereforfor the payment of such dividends and whether or not dividends are declared, and shall be payable semiannually commencing on the 180th April 21 of each year (unless such day following the Issue Date (or the following Business Day if any such payment date is not a Business Day, in which event such dividends shall be payable on the next succeeding Business Day) (each such date being referred a DIVIDEND PAYMENT DATE and each such annual period being a DIVIDEND PERIOD). Each such dividend shall be payable to herein the holders of record of shares of the Series A Preferred Stock as a “they appear on the share register of the Corporation on the corresponding Record Date. As used herein, the term RECORD DATE means, with respect to the dividend payable on April 21 of each year, the date 45 days preceding April 21. Accrued and unpaid dividends for any past Dividend Periods may be declared and paid at any time, without reference to any Dividend Payment Date”) at , to holders of record on such record date, not more than 45 days preceding the rate per annum payment date thereof, as may be fixed by the Board of 6% per share Directors. Dividends shall accumulate to the extent that they are not paid on the Liquidation PreferenceDividend Payment Date for the Dividend Period to which they relate. (b) Holders of shares of Series A Preferred Stock shall not be entitled to any dividends, whether payable in cash, property or stock, in excess of cumulative dividends, as herein provided, on the Series A Preferred Stock. No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on the Series A Preferred Stock that may be in arrears; provided that, that if dividends are not paid in the event that full on any Dividend Payment Date, the Company is amount so payable, to the extent not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directorspaid, shall not be paid or payable added to the then effective Liquidation Preference on such Dividend Payment Date and Date. (c) So long as any shares of the Series A Preferred Stock are outstanding, no liability dividend, except as described in the next succeeding sentence, shall be incurred declared or paid or set apart for payment on any Parity Securities, nor shall any Parity Securities be redeemed, purchased or otherwise acquired for any consideration (or moneys be paid to or made available for a sinking fund for the redemption of any shares of any such stock) by the Corporation, directly or indirectly, (except by conversion into or exchange for Junior Securities) unless in respect each case full cumulative dividends have been or contemporaneously are declared and paid or declared and consideration sufficient for the payment thereof set apart for such payment on the Series A Preferred Stock for all Dividend Periods terminating on or prior to the date of payment of the dividend on such class or series of Parity Securities or the redemption, purchase or other acquisition thereof. When dividends are not paid in full or consideration sufficient for such payment is not set apart, as aforesaid, all dividends declared upon shares of the Series A Preferred Stock and instead, such Deferred Dividend all dividends declared upon any other class or series of Parity Securities shall be declared, become payable declared ratably in proportion to the respective amounts of dividends accumulated and be paid and the liability in respect thereof be incurred unpaid on the first succeeding Dividend Payment Date Series A Preferred Stock and accumulated and unpaid on which such Parity Securities. (d) So long as any shares of the Company is not prohibited from declaringSeries A Preferred Stock are outstanding, paying and incurring the liability no dividends (other than dividends or distributions paid in respect of such Deferred Dividend (andshares of, or to effectuate a stock split on, or options, warrants or rights to subscribe for the avoidance of doubtor purchase shares of, such Deferred Dividend Junior Securities) shall be payable in addition todeclared or paid or set apart for payment or other distribution declared or made upon Junior Securities, and not in lieu ofnor shall any Junior Securities be redeemed, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any purchased or otherwise acquired (other period that is shorter or longer than a full semiannual dividend period will be computed on the basis redemption, purchase or other acquisition of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock made for purposes of an employee incentive or benefit plan of the Corporation or any subsidiary) (any such dividend, distribution, redemption or purchase being hereinafter referred to as a JUNIOR SECURITIES DISTRIBUTION) for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any shares of any such stock) by the Corporation, directly or indirectly (except by conversion into or exchange for Junior Securities), unless in each case (i) the full cumulative dividends on all outstanding shares of the Series A Preferred Stock and accrued and unpaid dividends on any dividend period other Parity Securities shall have been paid or set apart for payment for all past Dividend Periods with respect to the Series A Preferred Stock, then a Stock and all past dividend periods with respect to such Parity Securities and (ii) sufficient consideration shall be payable in have been paid or set apart for the payment of the dividend for the current Dividend Period with respect of each share of to the Series A Preferred Stock for such period in an amount equal to and the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a current dividend period with respect to a Dividend Payment Date is such Parity Securities. (e) The number of Additional Shares to be issued as dividends in lieu of cash will equal the period commencing on quotient of (X) the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders cash amount of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be that otherwise would have been payable in respect of shares initially issued any Holder who is contractually obligated to appear cash and vote in favor of any proposal made at a meeting of stockholders of (Y) the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendthen effective Liquidation Preference per share.

Appears in 2 contracts

Samples: Stock Purchase Agreement (Signature Eyewear Inc), Stock Purchase Agreement (Signature Eyewear Inc)

Dividends. (a) The Holders of shares a particular series of Series A Preferred Stock Shares shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be when, as and if declared by the Board of Directors or a duly authorized committee thereofTrustees of the Trust, out of the assets of the Company funds legally available therefor, cumulative dividends each consisting of cash at the Applicable Rate and no more, payable on the respective dates set forth below. Dividends on the shares of each series of Preferred Shares so declared and payable shall be paid in preference to and in priority over any dividends declared and payable on the Common Shares. (i) Cash dividends on shares of each series of Preferred Shares shall accumulate from the Date of Original Issue and shall be payable semiannually payable, when, as and if declared by the Board of Trustees of the Trust, out of funds legally available therefor, commencing on the 180th Initial Dividend Payment Date. Following the Initial Dividend Payment Date for a series of Preferred Shares, dividends on that series of Preferred Shares will be payable, at the option of the Trust, either (i) with respect to any 7-Day Dividend Period and any Short Term Dividend Period of 35 or fewer days, on the day following next succeeding the Issue Date last day thereof, or (or ii) with respect to any Short Term Dividend Period of more than 35 days and with respect to any Long Term Dividend Period, monthly on the following first Business Day of each calendar month during such Short Term Dividend Period or Long Term Dividend Period and on the day next succeeding the last day thereof (each such date referred to in clause (i) or (ii) being herein referred to as a "Normal Dividend Payment Date"), except that if any such payment date Normal Dividend Payment Date is not a Business Day) (each , then the Dividend Payment Date shall be the first Business Day next succeeding such date being referred to herein as a “Normal Dividend Payment Date”) at the rate per annum of 6% per share . Although any particular Dividend Payment Date may not occur on the Liquidation Preference; provided thatoriginally scheduled date because of the exceptions discussed above, in the event that on any next succeeding Dividend Payment Date, subject to such exceptions, will occur on the Company next following originally scheduled date. If for any reason a Dividend Period for a series of Preferred Shares is not permitted scheduled to declare or pay such dividend or incur such liability either (x) begin on the same day and end on the same day as a matter Dividend Period for another series of law or (y) under Preferred Shares, then the terms last day of such Dividend Period for such other series of Preferred Shares shall be the second Business Day next succeeding such scheduled day unless the Trust obtains the opinion of tax counsel referred to in this paragraph. Subject to the limitation in the next sentence, if for any reason a Dividend Payment Date cannot be fixed as described above, then the Board of Trustees of the Trust shall fix the Dividend Payment Date. However, no Dividend Period of any loan agreementseries of Preferred Shares shall be co-extensive with any Dividend Period of any other series of Preferred Shares unless the Trust has received an opinion of tax counsel that having such co-extensive periods will not affect the deductibility, credit agreementfor federal income tax purposes, guarantyof dividends paid on the different series of Preferred Shares. The Board of Trustees of the Trust before authorizing a dividend may change a Dividend Payment Date if such change does not adversely affect the contract rights of the Holders of Preferred Shares set forth in the Declaration of Trust or the Bylaws. The Initial Dividend Period, or related agreement7-Day Dividend Periods and Special Dividend Periods with respect to a series of Preferred Shares are hereinafter sometimes referred to as "Dividend Periods." Each dividend payment date determined as provided above is hereinafter referred to as a "Dividend Payment Date." (ii) Each dividend shall be paid to the Holders as they appear in the Stock Register as of 12:00 noon, such dividend (a “Deferred Dividend”) shall not New York City time, on the Business Day preceding the Dividend Payment Date. Dividends in arrears for any past Dividend Period may be declared and paid at any time, without reference to any regular Dividend Payment Date, to the Holders as they appear on the Stock Register on a date, not exceeding 15 days prior to the payment date therefor, as may be fixed by the Board of DirectorsTrustees of the Trust. (i) During the period from and including the Date of Original Issue to but excluding the Initial Dividend Payment Date for a series of Preferred Shares (the "Initial Dividend Period"), the Applicable Rate for such series of Preferred Shares shall not be paid or payable the Initial Dividend Rate. Commencing on such the Initial Dividend Payment Date for a series of Preferred Shares, the Applicable Rate on that series for each subsequent dividend period (hereinafter referred to as a "Subsequent Dividend Period"), which Subsequent Dividend Period shall commence on and include a Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing end on and following include the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the calendar day immediately prior to the next Dividend Payment Date. Dividends payable on a Date (or last Dividend Payment Date in a Dividend Period if there is more than one Dividend Payment Date), shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) equal to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders rate per annum that results from implementation of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendAuction Procedures.

Appears in 2 contracts

Samples: Bylaws (Pimco Corporate Income Fund), Bylaws (Pimco Corporate Income Fund)

Dividends. (a) Holders From and after the first date of shares issuance of Series A any Preferred Stock Shares (the “Initial Issuance Date”), the Preferred Shares shall be entitled to cumulative commence accruing dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a Dividend Payment DateDividends”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be Rate computed on the basis of a 360-day year consisting of and twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend Dividends shall be payable in respect arrears on the first Trading Day of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable Fiscal Quarter (each, a “Dividend Record Date”)) with the first Dividend Date being the first Trading Day of the initial Fiscal Quarter commencing after the Initial Issuance Date. Dividends shall be payable on each Dividend Date, to each record holder (each, a “Holder”, and collectively, the “Holders”) of Preferred Shares on the applicable Dividend Date, in shares of Common Stock (“Dividend Shares”) so long as there has been no Equity Conditions Failure; provided however, that the Company may, at its option following notice to each Holder, capitalized such Dividend by increasing the Stated Value of each Preferred Share on such Dividend Date (“Capitalized Dividend”) or in a combination of a Capitalized Dividend and a payment in Dividend Shares. The Company shall deliver a written notice (each, a “Dividend Election Notice”) to each Holder of the Preferred Shares on or prior to the tenth (10th) Trading Day immediately prior to the applicable Dividend Date (each, a “Dividend Notice Due Date”) (the date such notice is delivered to all of the Holders, the “Dividend Notice Date”) which notice (i) either (A) confirms that Dividend to be paid on such Dividend Date shall be paid entirely in Dividend Shares or (B) elects to effect a Capitalized Dividend or a combination of Capitalized Dividend and a payment in Dividend Shares and specifies the amount of Dividend that shall be a Capitalized Dividend and the amount of Dividend, if any, that shall be paid in Dividend Shares and (ii) certifies that there has been no Equity Conditions Failure. If an Equity Conditions Failure has occurred as of the Dividend Notice Date, then unless the Company has elected to effect a Capitalized Dividend, the Dividend Election Notice shall indicate that unless such applicable Holder waives the Equity Conditions Failure, the Dividend shall be effected as a Capitalized Dividend. Notwithstanding anything in this Section 3(a) herein to the contrary, if no Equity Conditions Failure has occurred as of the Dividend Notice Date, but an Equity Conditions Failure occurs at any time prior to the Dividend Date, (A) the Company shall provide each Holder a subsequent notice to that effect and without limiting (B) unless such applicable Holder waives the Equity Conditions Failure, the Dividend shall be paid to such Holder in cash. Dividend to be paid on a Dividend Date in Dividend Shares shall be paid in a number of fully paid and nonassessable shares (rounded to the nearest whole share) of Common Stock equal to the quotient of (1) the amount of Dividend payable on such Dividend Date less any other remedy available Capitalized Dividend and (2) the Dividend Conversion Price in effect on the applicable Dividend Date. For the avoidance of doubt, all Dividends must be Capitalized Dividends until the Company shall have obtained the Stockholder Approval on the Stockholder Approval Date (in each case as defined in the Series C-2 Certificate of Designations). (b) When any Dividend Shares are to be paid on a Dividend Date to a Holder, the Company shall (i) (A) provided that the Company’s transfer agent (the “Transfer Agent”) is participating in the Depository Trust Company (“DTC”) Fast Automated Securities Transfer Program (“FAST”), credit such aggregate number of Dividend Shares to which such Holder shall be entitled to such Holder’s or its designee’s balance account with DTC through its Deposit/Withdrawal at Custodian system, or (B) if the Transfer Agent is not participating in FAST, issue and deliver on the applicable Dividend Date, to the address set forth in the register maintained by the Company for such purpose pursuant to the Issuance Agreement or to such address as specified by such Holder in writing to the Company at least two (2) Business Days prior to the applicable Dividend Date, a certificate, registered in the name of such Holder or its designee, for the number of Dividend Shares to which such Holder shall be entitled and (ii) with respect to each Dividend Date, increase the Stated Value of the Preferred Shares by the amount of any other partyCapitalized Dividend. (c) Prior to the payment of Dividends on a Dividend Date, dividends Dividends on the Preferred Shares shall not accrue or at the Dividend Rate and be payable by way of inclusion of the Dividends in respect of shares initially issued the Conversion Amount on each Conversion Date in accordance with Section 4(b) or upon any Holder who is contractually obligated to appear redemption in accordance with Section 9 or upon any required payment upon any Bankruptcy Triggering Event. From and vote in favor after the occurrence and during the continuance of any proposal made Triggering Event, the Dividend Rate in effect with respect to such determination shall automatically be increased to the Default Rate. In the event that such Triggering Event is subsequently cured (and no other Triggering Event then exists (including, without limitation, for the Company’s failure to pay such Dividends at a meeting of stockholders the Default Rate on the applicable Dividend Date)), the adjustment referred to in the preceding sentence shall cease to be effective as of the Company in order calendar day immediately following the date of such cure; provided that the Dividends as calculated and unpaid at such increased rate during the continuance of such Triggering Event shall continue to effect apply to the Stockholder Approval (or whose transferor Holder was so obligated) if extent relating to the days after the occurrence of such Holder (or Triggering Event through and including the date of such transferor Holder or the Affiliates cure of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendTriggering Event.

Appears in 2 contracts

Samples: Settlement Agreement (IMAC Holdings, Inc.), Securities Purchase Agreement (IMAC Holdings, Inc.)

Dividends. (a) Holders of shares The holders of Series A D-1 Preferred Stock Shares shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, when and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall out of funds legally available for the payment of dividends, dividends per Series D-1 Preferred Share payable in cash at the applicable Annual Dividend Rate; provided, however, that if any dividend payable on any Dividend Payment Date is not be paid or in full in cash on such Dividend Payment Date, the amount payable as dividends on such Dividend Payment Date and no liability shall be incurred that is not paid in respect thereof, and instead, cash on such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date shall automatically, without any further action by the Corporation, be added to the Liquidation Preference on which the Company is relevant Dividend Payment Date at the Annual Dividend Rate applicable with respect to dividends not prohibited from declaring, paying and incurring the liability paid in respect of cash. Each such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend dividend payable in cash shall be payable in addition toarrears to the holders of record of the Series D-1 Preferred Shares, as they appear on the stock records of the Corporation at the close of business on each record date, which shall not be more than 30 days preceding the applicable Dividend Payment Date (the “Dividend Payment Record Date”), as shall be fixed by the Board of Directors. The amount of accrued and unpaid dividends on any Series D-1 Preferred Stock at any date shall be the amount of any dividends thereon, calculated at the applicable Annual Dividend Rate, to and including such date, whether or not in lieu ofearned or declared, which have not been paid; provided that an amount equal to any dividend which would ordinarily be payable that was not paid in cash on such succeeding any applicable Dividend Payment DateDate shall be added to the Liquidation Preference in accordance with this Section 3(a) and such dividend not paid in cash and so added shall not be considered as an accrued and unpaid dividend for any purposes hereof. (b) The amount of dividends payable based on the Annual Dividend Rate for each full Dividend Period for the Series D-1 Preferred Shares shall be computed by dividing the applicable Annual Dividend Rate by four (4). The amount of dividends payable for the initial Dividend Period, or any other period that is shorter or longer than a full semiannual dividend period will Dividend Period, on the Series D-1 Preferred Shares shall be computed on the basis of four 90-day quarters and a 360-day year consisting year. Holders of twelve 30-day months. Commencing on and following the Meeting End DateSeries D-1 Preferred Shares shall not be entitled to any dividends, whether payable in cash, property or stock, in excess of the event that dividends are on the Series D-1 Preferred Shares as herein provided. (c) All dividends paid on shares of Common Stock in any dividend period with respect to Series D-1 Preferred Shares shall be paid pro rata. (d) So long as any Series D-1 Preferred Shares are outstanding, no dividends, except as described in the immediately following sentence, shall be authorized and declared and paid or set apart for payment on any series or class or classes of Parity Shares for any period unless full accrued and unpaid dividends have been or contemporaneously are authorized and declared and paid in cash or authorized and declared and a sum sufficient for the payment thereof set apart for such payment on the Series A D-1 Preferred StockShares for the immediately preceding Dividend Period and on the Parity Shares for the immediately preceding dividend period applicable to the Parity Shares. When dividends are not paid in full or a sum sufficient for such payment is not set apart, as aforesaid, for the Dividend Period referred to in the immediately preceding sentence, then a dividend all dividends authorized and declared upon Series D-1 Preferred Shares and all dividends authorized and declared upon any other series or class or classes of Parity Shares shall be payable authorized and declared ratably in respect of each share of Series A Preferred Stock for such period in an amount equal proportion to the greater respective amounts of dividends accrued and unpaid on the Series D-1 Preferred Shares and such class or classes or series of Parity Shares. (ie) So long as any Series D-1 Preferred Shares are outstanding, no dividends shall be authorized and declared and paid or set apart for payment and no other distribution shall be authorized and declared and made upon Junior Shares (other than dividends or other distributions paid solely in Junior Shares, or options, warrants or rights to subscribe for or purchase Junior Shares), nor shall any Junior Shares be redeemed, purchased or otherwise acquired (other than a redemption, purchase or other acquisition of Common Shares made for purposes of and in compliance with requirements of an employee incentive or benefit plan of the amount otherwise payable in respect Corporation or any subsidiary) for any consideration (or any moneys to be paid to or made available for a sinking fund for the redemption of any shares of such share of stock) by the Corporation, directly or indirectly (except by conversion or exercise into or exchange for Junior Shares), unless in each case the full accrued and unpaid dividends on all outstanding Series A D-1 Preferred Stock Shares shall have been paid in accordance with cash and on any other Parity Shares shall have been previously paid for the foregoing paragraph immediately preceding Dividend Period and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such immediately preceding dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior applicable to the next Dividend Payment Date. Dividends payable on a Parity Shares. (f) In any case where any Dividend Payment Date shall not be payable to Holders a Business Day, then (notwithstanding any other provision of record this Certificate of Designation) payment of dividends need not be made on such date, but may be made on the close of business next succeeding Business Day with the same force and effect as if made on the day Dividend Payment Date; provided, however, that no interest shall accrue on which such amount of dividends for the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “period from and after such Dividend Record Payment Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.

Appears in 2 contracts

Samples: Investment Agreement (Apollo Global Management LLC), Investment Agreement (RCS Capital Corp)

Dividends. (a) Holders The holders of shares of the Series A Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be when, as and if declared by the Board of Directors or a duly authorized committee thereofDirectors, out of the assets funds of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) cumulative cash dividends at the rate per annum of 6% per share on described in Section 3(b). To the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be extent declared by the Board of Directors, dividends will be payable quarterly on the 15th day of the first month of each calendar quarter in San Francisco, California, or if not a Business Day in San Francisco, California, the next succeeding Business Day in San Francisco, California, and in the case of any accrued but unpaid dividends, at such additional times, if any, as determined by the Board of Directors (each a “Dividend Payment Date”); provided, however, that the first Dividend Payment Date for the Series A-1 Cumulative Redeemable Preferred Stock was January 16, 2017, in San Francisco, California, and the first Dividend Payment Date for the Series A-2 Cumulative Redeemable Preferred Stock will be January 15, 2018. A “Business Day” shall not mean any day, other than a Saturday or a Sunday, that is neither a legal holiday nor a day on which banking institutions in New York, New York, San Francisco, California or Tokyo, Japan are authorized or required by law, regulation or executive order to close. It is expected that the Board of Directors will declare any dividends by the end of the month prior to the month in which such dividends are to be paid or payable on paid. No less than five (5) Business Days before each Dividend Payment Date, the Company shall notify the holders of the Series A Preferred Stock of such Dividend Payment Date and no liability shall be incurred in respect thereof, the amount of the dividend payment for each of the Series A-1 Cumulative Redeemable Preferred Stock and instead, such Deferred Dividend shall be declared, become payable the Series A-2 Cumulative Redeemable Preferred Stock. Dividends on the Series A-1 Cumulative Redeemable Preferred Stock will accrue and be paid cumulative from and including the liability in respect thereof be incurred date of issuance of the Series A-1 Preferred Stock (the “Series A-1 Original Issue Date”) and Dividends on the first succeeding Dividend Payment Date on which Series A-2 Cumulative Redeemable Preferred Stock will accrue and be cumulative from and including the Company is not prohibited from declaring, paying and incurring date of issuance of the liability in respect of such Deferred Dividend Series A-2 Preferred Stock (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment “Series A-2 Original Issue Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End term “Original Issue Date, in the event that dividends are paid on shares of Common Stock in any dividend period ” when used with respect to the Series A A-1 Cumulative Redeemable Preferred Stockstock shall mean the Series A-1 Original Issue Date, then a dividend and when used with respect to the Series A-2 Cumulative Redeemable Preferred Stock shall mean the Series A-2 Original Issue Date. However, the Board of Directors will not be payable in respect required to declare dividends, and the holders of each share of the Series A Preferred Stock for such period in an amount equal will not be entitled to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor require payment of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legenddividend.

Appears in 2 contracts

Samples: Preferred Stock Purchase Agreement, Series a 2 Preferred Stock Purchase Agreement (Willis Lease Finance Corp)

Dividends. (a) The Holders as of shares of Series A Preferred Stock 12:00 noon, New York City time, on the applicable Dividend Payment Date, shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be when, as and if declared by the Board of Directors or a duly authorized committee thereofTrustees, out of the assets of the Company funds legally available therefor, cumulative dividends, at the Applicable Dividend Rate. Dividends on the shares of RP so declared and payable shall be paid (i) in preference to and in priority over any dividends declared and payable on the Common Shares, and (ii) to the extent permitted under the Code and to the extent available and in preference to and priority over any dividends declared and payable on the Common Shares, out of tax-exempt income earned on the Trust's investments, subject to the application of the alternative minimum tax provisions of the Code. Dividends on shares of RP will be designated as exempt-interest dividends up to the amount of net tax-exempt income of the Trust for purposes of section 852 of the Code. (b) Dividends on each share of RP shall accumulate from its Date of Original Issue and will be payable, when, as and if declared by the Board of Trustees, on each Dividend Payment Date applicable to such share of RP. (c) Each declared dividend shall be payable semiannually commencing on the 180th day following applicable Dividend Payment Date to the Issue Holder or Holders of such shares of RP as set forth in paragraph 3(a). Dividends on any share of RP in arrears with respect to any past Dividend Payment Date (or the following Business Day if may be declared and paid at any such payment date is not a Business Day) (each such date being referred time, without reference to herein as a “any regular Dividend Payment Date, to the Holder of such share as of a date not exceeding five Business Days preceding the date of payment thereof as may be fixed by the Board of 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) at with respect to the earliest Dividend Payment Date on which dividends were not paid. (d) 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, except as set forth in paragraph 3(1) of this Part I. Except as provided in paragraph 3(h) of this Part I, 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 Applicable Dividend Rate on each share of RP for each Dividend Period with respect to such share shall be equal to the rate per annum that results from implementation of 6% per the remarketing procedures described in Part II hereof. (f) The amount of declared dividends for each share of RP payable on each Dividend Payment Date in respect of any 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 Liquidation Preference; provided thatnumerator of which shall be the number of days such share was outstanding from and including its Date of Original Issue or the preceding Dividend Payment Date, as the case may be, to and including the last day of such Dividend Period, and the denominator of which shall be 365, and then multiplying the percentage so obtained by $100,000. In accordance with the remarketing procedures described in the event that Part II hereof, there may exist at any given time a number of Dividend Payment Dates for all outstanding shares of RP and dividends on any such share shall be payable only on a Dividend Payment Date applicable to such share. (g) No later than by 12:00 noon, New York City time, on each Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under Trust shall deposit in same-day funds with the terms Paying Agent the full amount of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or and payable on such Dividend Payment Date and no liability on any share of RP. (h) The Applicable Dividend Rate for each Dividend Period commencing during a Non-Payment Period shall be incurred in respect thereof, and instead, such Deferred equal to the Non-Payment Period Rate; any share of RP for which an Optional Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred Period or a Special Dividend Period would otherwise have commenced on the first succeeding day of a Non-Payment Period shall have, instead, a 7-day Dividend Period; and each Dividend Period commencing after the first day of, and during, a Non-Payment Period shall be a 7-day Dividend Period. Any amount of any dividend due on any Dividend Payment Date on which the Company is not prohibited from declaringfor any shares of RP (if, paying and incurring the liability in respect of such Deferred Dividend (andprior to 12:00 noon, for the avoidance of doubtNew York City time, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount , the Trust has declared such dividend payable on or within three Business Days after such Dividend Payment Date to the Holders of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed such shares of RP as of 12:00 noon, New York City time, on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Business Day preceding such Dividend Payment Date, in the event that dividends are paid on shares of Common Stock in any dividend period ) or redemption price with respect to any shares of RP not paid to such Holders when due but paid to such Holders in the Series A Preferred Stocksame form of funds by 12:00 noon, then 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 dividend shall late charge to be payable in respect of each share of Series A Preferred Stock paid therewith to such Holders and calculated for such period in an amount equal of non-payment at the Non-Payment Period Rate applied to the greater amount of such non-payment based on the actual number of days comprising such period divided by 365. For the purposes of the foregoing and paragraphs 3(g) and 4(g) of this Part I, payment to a person in same-day funds on any Business Day at any time shall be considered equivalent to payment to such person in New York Clearing House (next-day) funds at the same time on the preceding Business Day, and any payment made after 12:00 noon, New York City time, on any Business Day shall be considered to have been made instead in the same form of funds and to the same person before 12:00 noon, New York City time, on the next Business Day. (i) Except during a Non-Payment Period, by 1:00 p.m. on the amount otherwise payable Tender Date in the Remarketing at the end of the Initial Dividend Period applicable to a share of RP, and by 1:00 p.m. on the Tender Date in the Remarketing at the end of each subsequent Dividend Period applicable to a share of RP, the Beneficial Owner of such share may elect to tender such share or to hold such share for the next Dividend Period. If the Beneficial Owner of such share of RP elects to hold such share, such Beneficial Owner shall elect to hold such share for a 7-day Dividend Period or a 28-day Dividend Period or any available Optional Dividend Period or a Special Dividend Period if the succeeding Dividend Period with respect to such share has been designated by the Board of Trustees as a Special Dividend Period; provided that, (i) if such Beneficial Owner shall elect to hold such share for a 7-day Dividend Period or a 28-day Dividend Period, but (a) there are no Remarketing Agents or the Remarketing Agents are not required to conduct a Remarketing, such Beneficial Owner shall hold such share for a 7-day Dividend Period, and the Applicable Dividend Rate shall be the Maximum Dividend Rate for a 7-day Dividend Period or (b) the Remarketing Agents are unable to remarket in such Remarketing all shares of RP subject to such Remarketing and tendered (or deemed tendered) to them at a price of $100,000 per share, such Beneficial Owner shall hold such share for the Dividend Period it had chosen and the Applicable Dividend Rate therefor shall be the applicable Maximum Dividend Rate, and (ii) if the Board of Trustees has designated the next succeeding Dividend Period with respect to such share as a Special Dividend Period or such Beneficial Owner elects an available Optional Dividend Period with respect to such shares and there are no Remarketing Agents, the Remarketing Agents are not required to conduct a Remarketing or the Remarketing Agents are unable to remarket in the Remarketing on the Dividend Reset Date following such Tender Date all shares of RP tendered (or deemed tendered) to them at a price of $100,000 per share, then the next succeeding Dividend Period in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the a 7-day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contraryPeriod, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.Applicable Dividend Rate

Appears in 2 contracts

Samples: Bylaws (Putnam Managed Municipal Income Trust), Bylaws (Putnam Managed Municipal Income Trust)

Dividends. (a) Holders The holders of shares of Series A Preferred Stock shall will be entitled to cumulative receive, when, as and if dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be are declared by the Board of Directors, shall not or any duly authorized committee thereof, dividends at the rate of US$0.80 per annum per share of Preferred Stock, to be paid or payable in cash out of funds legally available therefor on each Dividend Payment Date, as set forth below. Declared dividends will be payable on [ ], [ ], [ ] and [ ] of each year (each, a “Dividend Payment Date”), beginning on the first such date to occur after the Issue Date. If any of those dates is not a Business Day, then such dividends will be payable on the next succeeding Business Day. The dividends payable on any Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and will accrue from the liability in respect thereof be incurred on the first succeeding last Dividend Payment Date on which or, prior to the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding first Dividend Payment Date, the Issue Date. Declared dividends will be payable to holders of record as they appear in the Company’s stock records at the close of business on the date which is 30 days prior to the Dividend Payment Date; provided, that if any such date is not a Business Day, then to the holders of record on the next succeeding Business Day (each, a “Dividend Payment Record Date”). The amount Dividends payable on the shares of dividends payable for any other period that is shorter or longer than a full semiannual dividend period Preferred Stock will be computed on the basis of a 360-day year consisting of twelve 30-day months. (b) Dividends on the Convertible Preferred Stock are cumulative. Commencing on and following If the Meeting End Date, in the event that dividends are paid on shares Board of Common Stock in Directors or any dividend period with respect authorized committee thereof fails to the Series A Preferred Stock, then declare a dividend shall to be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), on a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Datedividend will accumulate on that Dividend Payment Date until declared and paid or will be forfeited upon conversion, except under the circumstances described in Section 7(c) and ending 7(f). (c) The Company shall not be obligated to pay holders of Preferred Stock any interest or sum of money in lieu of interest on the day immediately prior to the next Dividend Payment Date. Dividends payable any dividend not paid on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which or any other late payment. If the Board of Directors or an authorized committee thereof does not declare a duly dividend for any Dividend Payment Date, the Board of Directors or an authorized committee thereof may declare and pay the dividend on any subsequent date, whether or not a Dividend Payment Date. The persons entitled to receive the dividend in such case will be holders of Preferred Stock as they appear on the stock register on a date selected by the Board of Directors or an authorized committee thereof. That date must not (a) precede the date the Board of Directors or an authorized committee thereof declares the dividend payable or (each, a “b) be more than 60 days prior to that Dividend Record Payment Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.

Appears in 2 contracts

Samples: Merger Agreement (National Health Realty Inc), Merger Agreement (National Healthcare Corp)

Dividends. (a) The Holders of shares of Series A Preferred Stock MRP Shares shall be entitled to receive quarterly cumulative dividends on the Series A Preferred Stock payable semiannuallycash dividends, which dividends shall be declared when, as and if authorized by the Board of Directors or a duly authorized committee thereofand declared by the Company, out of the assets of the Company funds legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share equal to the Applicable Rate (or the Default Rate), and no more, payable on the Liquidation Preference; provided thatrespective dates determined as set forth in paragraph (b) of this Section 2. Dividends on Outstanding MRP Shares shall accumulate from the Original Issue Date. (i) Dividends shall be payable quarterly when, in as and if authorized by the event that Board of Directors and declared by the Company beginning on any the initial Dividend Payment Date, on MRP Shares, with respect to any Dividend Period thereafter on the first (1st) Business Day following each Quarterly Dividend Date. (ii) Except as otherwise set forth herein, the Company is not permitted shall pay an aggregate amount of federal funds or similar same-day funds, equal to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not dividends to be paid or payable to all Holders of such shares on such Dividend Payment Date and no liability in accordance with Section 14 of the Securities Purchase Agreement. The Company shall not be required to establish any reserves for the payment of dividends. (iii) Each dividend on MRP Shares shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date therefor to the Holders as their names appear on which the share ledger or share records of the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on at the close of business on the fifth (5th) day prior to the Quarterly Dividend Date (or if such day is not a Business Day, the next preceding Business Day). Dividends in arrears for any past Dividend Period may be declared and paid at any time, without reference to any regular Dividend Payment Date, to the Holders as their names appear on which the share ledger or share records of the Company at the close of business on a date, not exceeding 5 days preceding the payment date thereof, as may be fixed by the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”)Directors. Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or No interest will be payable in respect of shares initially issued any Holder who dividend payment or payments which may be in arrears. (i) So long as the MRP Shares are rated on any date no less than “A” by Fitch (and no less than an equivalent of such ratings by some Other Rating Agency), the dividend rate on such Outstanding MRP Shares (the “Dividend Rate”) shall be the Applicable Rate. If the lowest credit rating assigned on any date to the MRP Shares by Fitch or any Other Rating Agency is contractually obligated equal to appear and vote one of the ratings set forth in favor the table below (or its equivalent by some Other Rating Agency), the Dividend Rate for the MRP Shares shall be adjusted by adding the respective enhanced dividend amount (which shall not be cumulative) set opposite such rating (or the equivalent rating from any Other Rating Agency) to the Applicable Rate. FITCH ENHANCED DIVIDEND AMOUNT The Company shall, at all times, use its reasonable best efforts to cause at least one NRSRO to maintain a current rating on the MRP Shares. If, notwithstanding the foregoing requirements of this Section 2(c)(i), no Rating Agency is rating the Outstanding MRP Shares, the Dividend Rate (so long as no such rating exists) on the Outstanding MRP Shares shall be equal to the Applicable Rate plus 4.0% unless the Dividend Rate is the Default Rate, in which case the Dividend Rate shall remain the Default Rate. (ii) Subject to the cure provisions below, a “Default Period” will commence on any Dividend Payment Date or any date on which the Company would be required to redeem any MRP Shares regardless of whether any of the conditions of the Special Proviso in Section 3(a)(iv) were applicable, if the Company either fails to pay directly in accordance with Section 14 of the Securities Purchase Agreement or, in the case of clause (B) below, fails to deposit irrevocably in trust in federal funds or similar funds, with the Paying Agent by 1:00 pm, New York City time, (A) the full amount of any proposal dividend payable on the Dividend Payment Date (a “Dividend Default”) or (B) the full amount of any redemption price payable with respect to any redemption required hereunder regardless of whether any of the conditions of the Special Proviso exists (the “Redemption Date”) (a “Redemption Default,” and together with a Dividend Default, is hereinafter referred to as “Default”). Subject to the cure provisions of Section 2(c)(iii) below, a Default Period with respect to a Dividend Default or a Redemption Default shall end on the Business Day on which, by 12:00 noon, New York City time, all unpaid dividends and any unpaid redemption price shall have been directly paid in accordance with Section 14 of the Securities Purchase Agreement. In the case of a Default, the Dividend Rate for each day during the Default Period will be equal to the Default Rate. (iii) No Default Period with respect to a Dividend Default or Redemption Default (if such default is not solely due to the willful failure of the Company) shall be deemed to commence if the amount of any dividend or any redemption price due is paid in accordance with Section 14 of the Securities Purchase Agreement within three Business Days (the “Default Rate Cure Period”) after the applicable Dividend Payment Date or Redemption Date, together with an amount equal to the Default Rate applied to the amount of such non-payment based on the actual number of days within the Default Rate Cure Period divided by 360. (iv) The amount of dividends per share payable on each Dividend Payment Date of each Dividend Period shall be computed by multiplying the Applicable Rate (or the Default Rate) for such Dividend Period by a fraction, the numerator of which shall be 90 and the denominator of which shall be 360, multiplying the amount so obtained by the liquidation preference per MRP Share, and rounding the amount so obtained to the nearest cent. Dividends payable on any MRP Shares for any period of less than a full quarterly Dividend Period, including in connection with the first Dividend Period or upon any redemption of such shares on any date other than on a Dividend Payment Date, shall be computed by multiplying the Applicable Rate (or the Default Rate) for such period by a fraction, the numerator of which shall be the actual number of days in such period and the denominator of which shall be 360, multiplying the amount so obtained by the liquidation preference per MRP Share, and rounding the amount so obtained to the nearest cent. (d) Any dividend payment made at on MRP Shares shall first be credited against the earliest accumulated but unpaid dividends due with respect to such MRP Shares. (e) For so long as the MRP Shares are Outstanding, except as contemplated herein, the Company will not declare, pay or set apart for payment any dividend or other distribution (other than a meeting dividend or distribution paid in shares of, or options, warrants or rights to subscribe for or purchase, Common Shares or other shares of stockholders capital stock, if any, ranking junior to the MRP Shares as to dividends or upon liquidation) with respect to Common Shares or any other shares of the Company ranking junior to or on a parity with the MRP Shares as to dividends or upon liquidation, or call for redemption, redeem, purchase or otherwise acquire for consideration any Common Shares or any other such junior shares (except by conversion into or exchange for shares of the Company ranking junior to the MRP Shares as to dividends and upon liquidation) or any such parity shares (except by conversion into or exchange for shares of the Company ranking junior to or on a parity with the MRP Shares as to dividends and upon liquidation), unless (1) immediately after such transaction the MRP Shares Asset Coverage would be achieved and the Company would satisfy the MRP Shares Basic Maintenance Amount, (2) full cumulative dividends on the MRP Shares due on or prior to the date of the transaction have been declared and paid, and (3) the Company has redeemed the full number of MRP Shares required to be redeemed by any provision for mandatory redemption contained in order Section 3(a) (without regard to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or provisions of the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendSpecial Proviso).

Appears in 2 contracts

Samples: Agency Agreement (Kayne Anderson MLP Investment CO), Securities Purchase Agreement (Kayne Anderson MLP Investment CO)

Dividends. (a) Holders When and as declared by the Corporation’s Board of shares Directors and to the extent permitted under the General Corporation Law of Series A Preferred Stock Delaware, the Corporation shall be entitled obligated to cumulative pay preferential dividends on to the holders of the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out prior and in preference to Common Stock as provided in this Section II.1. Dividends on each share of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date Series A Preferred Stock (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment DateSeries A Share”) shall accrue at the rate per annum of 68% per share annum, compounded quarterly, on the sum of the Series A Liquidation Preference; provided that, in Preference thereof plus all accumulated and unpaid dividends thereon from and including the event that on any Dividend Payment Date, the Company is not permitted Date of Issuance of such Series A Share to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on including the first succeeding Dividend Payment Date to occur of (i) the date on which the Company is not prohibited from declaring, paying and incurring the liability in respect Series A Liquidation Preference of such Deferred Dividend Series A Share, plus all accrued and unpaid dividends thereon, is paid to the holder thereof in connection with the liquidation of the Corporation, (and, for ii) the avoidance of doubt, date on which such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that Series A Share is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on converted into shares of Common Stock hereunder or (iii) the date on which such Series A Share is otherwise acquired by the Corporation. Such dividends shall accrue whether or not they have been declared and whether or not there are profits, surplus or other funds of the Corporation legally available for the payment of dividends, and such dividends shall be cumulative such that all accrued and unpaid dividends shall be fully paid or declared with funds irrevocably set apart for payment before any dividends, distributions, redemptions or other payments may be made with respect to any Common Stock. To the extent not paid on March 31, June 30, September 30, and December 31 of each year, with respect to each Series A Share (the “Dividend Reference Dates”), all dividends which have accrued on each Series A Share outstanding during the three-month period (or other period in the case of the initial Dividend Reference Date) ending upon each such Dividend Reference Date shall be accumulated and shall remain accumulated dividends with respect to such Share until paid to the holder thereof. Except as otherwise provided herein, if at any dividend period time the Corporation pays less than the total amount of dividends then accrued with respect to the Series A Preferred StockPreferred, then a dividend such payment shall be payable in respect of each share distributed, pro rata among the holders of Series A Preferred based upon the preferences set forth in Section II.1(a) above and based upon the aggregate accrued but unpaid dividends on the Shares held by each such holder. In the event that the Corporation declares or pays any dividends upon the Common Stock for such period (whether payable in an amount equal cash, securities or other property) other than dividends payable solely in shares of Common Stock, the Corporation shall also declare and pay to the greater holders of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance at the same time that it declares and pays such dividends to the holders of the Common Stock, the dividends which would have been declared and paid with respect to the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) issuable upon conversion of the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes had all of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day outstanding Series A Preferred Stock been converted immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders record date for such dividend, or if no record date is fixed, the date as of record on the close of business on the day on which the Board record holders of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued Common Stock entitled to such Holders shall bear the Stockholder Approval Legenddividends are to be determined.

Appears in 2 contracts

Samples: Debt Exchange Agreement (New Generation Holdings Inc), Debt Exchange Agreement (Plastinum Corp)

Dividends. (a) Holders of shares of Series A Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date It is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event agreed that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect Parties shall take such actions as are necessary to ensure that the timing of any regular quarterly dividend paid to common stockholders or shareholders by either Company or Parent prior to the Closing will be coordinated so that, if either the holders of Company Common Stock or the holders of Parent Common Shares receive a distribution for a particular calendar quarter prior to the Closing Date, then the holders of Parent Common Shares and the holders of Company Common Stock, respectively, shall also receive a distribution for such share of Series A Preferred Stock in accordance with calendar quarter prior to the foregoing paragraph Closing Date and (ii) the product Parties will coordinate such that any such quarterly distribution by Company and Parent shall have the same record date and the same payment date, which shall be consistent with Parent’s historical record dates and payment dates unless otherwise agreed between the Parties, in order to ensure that the common stockholders of (A) Company and the aggregate dividends payable per share common shareholders of Common Stock in such dividend period times (B) Parent receive the same number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately dividends prior to the next Dividend Payment Effective Time (provided that the amount of any such quarterly dividend declared by Company shall be consistent with Section 6.1(b)(ii) and the amount of any such quarterly dividend declared by Parent shall be consistent with Section 6.2(b)(ii)). (b) If Company or any Company Subsidiary, in consultation with Parent, determines that it is necessary to declare a Permitted REIT Dividend, Company shall notify Parent at least twenty (20) days prior to the anticipated Closing Date. Dividends Notwithstanding anything to the contrary contained herein, in the event Company declares a Permitted REIT Dividend other than a Permitted REIT Dividend necessitated by action or actions requested by Parent pursuant to Section 7.17, the Exchange Ratio will be ratably adjusted to the extent necessary or appropriate to reflect fully the effect of such change resulting from the Permitted REIT Dividend. The record date and payment date for any Permitted REIT Dividend payable on a Dividend Payment Date by Company or any Company Subsidiary shall be payable to Holders of record on the close of business on the day on which last Business Day prior to the Board of Directors Closing Date. (c) If Parent or any Parent Subsidiary, in consultation with Company, determines that it is necessary to declare a duly authorized committee thereof declares Permitted REIT Dividend, Parent shall notify Company at least twenty (20) days prior to the dividend payable (each, a “Dividend Record anticipated Closing Date”). Notwithstanding anything in this Section 3(a) to the contrarycontrary contained herein, and without limiting any other remedy available in the event Parent declares a Permitted REIT Dividend, the Exchange Ratio will be ratably adjusted to the Company extent necessary or appropriate to reflect fully the effect of such change resulting from the Permitted REIT Dividend. The record date and payment date for any Permitted REIT Dividend payable by Parent or any other party, dividends Parent Subsidiary shall not accrue or be payable in respect the close of shares initially issued any Holder who is contractually obligated business on the last Business Day prior to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendClosing Date.

Appears in 2 contracts

Samples: Merger Agreement (Kite Realty Group, L.P.), Merger Agreement (Retail Properties of America, Inc.)

Dividends. (a) Holders of shares of outstanding Series A I Preferred Stock shall be entitled to cumulative receive, out of funds of the Corporation legally available therefor, dividends at the annual rate of 8.0% per share on the Series A Preferred Stock payable semiannually, which dividends Original Purchase Price (the “Dividend Rate”). Dividends shall be declared by the Board of Directors or a duly authorized committee thereofCorporation and paid in arrears on each Dividend Payment Date (as defined below) commencing on March 15, out of 2009 for the assets of the Company legally available therefor, and Dividend Period ending immediately prior to such Dividend Payment Date. Such dividends shall be payable semiannually commencing to the record holders of Series I Preferred Stock on the 180th day following the Issue Date (or the following Business Day if any such payment record date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which such dividends are declared (notwithstanding any transfer or other disposition after such record date and prior to the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to If a Dividend Payment Date is the period commencing not a business day, payment will be made on the preceding next succeeding business day, without any interest or other payment in lieu of interest accruing with respect to this delay. Subject to Section 3(e) below, all such dividends shall accrue from the most recent date as to which dividends shall have been paid or, if no dividends have been paid, from the original date of issuance of the Series I Preferred Stock (the “Issue Date”), whether or not in any Dividend Period(s) there shall have been funds of the Corporation legally available for the payment of such dividends. Notwithstanding the foregoing, such dividends shall be paid only to the extent assets are legally available therefor on the Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior any amounts for which assets are not legally available shall be paid promptly as assets become legally available therefore. Any partial payment of dividends otherwise required to the next Dividend Payment Date. Dividends payable be paid on a Dividend Payment Date shall will be payable to Holders made pro rata among the applicable record holders of record shares of Series I Preferred Stock based on the close their respective holdings of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable such shares. (each, a i) The term “Dividend Record Payment Date”). Notwithstanding anything in this Section 3(a) to the contrary” shall mean September 15th and March 15th of each year, and without limiting any other remedy available to the Company or any other partybeginning with March 15, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend2009.

Appears in 2 contracts

Samples: Subscription Agreement (Wave Systems Corp), Subscription Agreement (Wave Systems Corp)

Dividends. (ai) Holders of shares of Series A Preferred Stock shall be entitled to cumulative dividends Dividends on the Series A Company Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall Securities will be payable semiannually commencing from the date of initial issuance on the 180th day following the Issue Date a noncumulative basis, semi-annually in arrears on April 1 and October 1 of each year through - 2011 and thereafter quarterly in arrears on January 1, April 1, July 1 and October 1 (or the following Business Day if any such payment date day is not a Business Day, the next Business Day, but without any additional interest or other payment in respect of such delay) (each such date being referred to herein as a "Dividend Payment Date" and each period from and including a Dividend Payment Date, or the date of initial issuance as applicable, to but not including the next Dividend Payment Date, a "Dividend Period") for the Dividend Period then ending, but only if the Company has legally available funds for such purpose and satisfies the other qualifications described below. Dividends will be payable on the liquidation preference (i) for each Dividend Period through the Dividend Period ending on the Dividend Payment Date in - 2011, at the a fixed rate per annum of 6% per share on the Liquidation Preference; liquidation preference equal to -% (calculated on the basis of a year of twelve 30-day months) and (ii) for each dividend period commencing on such Dividend Payment Date and thereafter, at a floating rate per annum on the liquidation preference equal to 3.07% above three-month LIBOR (calculated on the basis of the actual number of days elapsed in a 360-day year). Dividends will be mandatorily due and payable in the circumstances described in Section 7.3(b)(ii) below, except that dividends will never be mandatorily due and payable if the Capital Limitation described below in Section 7.3(b)(iii) applies. If dividends on a Dividend Payment Date are neither mandatorily due and payable nor prohibited by application of the Capital Limitation, then (i) payment of dividends on the Company Preferred Securities will be limited by the Bank's Available Distributable Profits (see Section 7.3(b)(iv), below) and (ii) if the Bank delivers, on or before the tenth Business Day immediately preceding such Dividend Payment Date, an instruction (a "No Dividend Instruction") to the Company not to pay dividends on such Dividend Payment Date or to pay less than full dividends on such Dividend Payment Date, dividends payable on the related Dividend Payment Date will be limited as provided thatin such No Dividend Instruction (see Section 7.3(b)(v) below). If any dividends will be payable on the Company Preferred Securities on a day that is not a Business Day, those dividends will instead be paid on the next Business Day. No interest or other payment will be due as a result of any such adjustment. LIBOR, with respect to a Determination Date, means the rate (expressed as a percentage per annum) for deposits in U.S. dollars for a three-month period commencing on the second London Banking Day immediately following that Determination Date that appears on Telerate Page 3750 as of 11:00 a.m. (London time) on that Determination Date. If such rate does not appear on Telerate Page 3750, LIBOR will be determined on the basis of the rates at which deposits in U.S. dollars for a three-month period commencing on the second London Banking Day immediately following that Determination Date and in a principal amount equal to an amount of not less than $1,000,000 that is representative for a single transaction in such market at such time, are offered to prime banks in the London interbank market by four major banks in the London interbank market selected by the -28- 34 Calculation Agent, after consultation with the Company, at approximately 11:00 a.m., London time, on that Determination Date. The Calculation Agent will request the principal London office of each of such banks to provide a quotation of its rate. If at least two such quotations are provided, LIBOR with respect to that Determination Date will be the arithmetic mean of such quotations. If fewer than two quotations are provided, LIBOR in respect of that Determination Date will be the arithmetic mean of the rates quoted by three major money center banks in New York City selected by the Calculation Agent, after consultation with the Company, at approximately 11:00 a.m., New York City time, on that Determination Date for loans in U.S. dollars to leading European banks for a three-month period commencing on the second London Banking Day immediately following that Determination Date and in a principal amount equal to an amount of not less than $1,000,000. However, if the banks selected by the Calculation Agent to provide quotations are not quoting as mentioned in this paragraph, LIBOR for the applicable period will be the same as LIBOR as determined on the previous Determination Date. All percentages resulting from any calculations on the Company Preferred Securities will be rounded, if necessary, to the nearest one hundred-thousandth of a percentage point, with five one-millionths of a percentage point rounded upward (e.g., 9.876545% (or .09876545) being rounded to 9.87655% (or .0987655)), and all dollar amounts used in or resulting from such calculation will be rounded to the nearest cent (with one-half cent being rounded upward). (ii) The Company is required to pay dividends on the Company Preferred Securities in three circumstances, as follows: (A) If the Bank declares or pays dividends or makes any other payment or distribution on any Bank Junior Obligations and the Capital Limitation does not apply, then the Company will be required to pay full dividends on the Company Preferred Securities during the one-year period beginning on and including the earlier of the date on which such dividend was declared or the date on which such dividend or other payment was made. (B) If the Bank or any of its subsidiaries redeems, repurchases or otherwise acquires any Bank Parity Securities or Bank Junior Obligations for any consideration, except by conversion into or exchange for shares or Bank Junior Obligations and except as described below (and provided that the Capital Limitation does not apply), then the Company will be required to pay dividends on the Company Preferred Securities during the one-year period beginning on and including the date on which such redemption, repurchase or other acquisition occurred. (C) If (x) the Bank or any of its subsidiaries declares or pays any dividends or makes any other payment or distribution on any Bank Parity Securities Notwithstanding paragraph (B) above, the Company will not be required to pay dividends solely as a result of (a) repurchases, redemptions or other acquisitions of Bank Parity Securities or ordinary shares in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or shareholder share purchase plan or in connection with the event issuance of Bank Parity Securities or Bank Junior Obligations (or securities convertible into or exercisable for such Bank Parity Securities or Bank Junior Obligations) as consideration in an acquisition transaction, (b) market-making in the Bank Parity Securities or ordinary shares as part of the securities business of the Bank or any of its subsidiaries, (c) the purchase of fractional interests in shares of Bank Parity Securities or Bank Junior Obligations pursuant to the conversion or exchange provisions of such Bank Parity Securities or Bank Junior Obligations or the security being converted or exchanged, (d) any declaration of a dividend in connection with any shareholder's rights plan, or the issuance of rights, shares or other property under any shareholder's rights plan, or the redemption or repurchase of rights pursuant to any such plan, or (e) any dividend in the form of shares, warrants, options or other rights where the dividend shares or the shares issuable upon exercise of such warrants, options or other rights are the same shares as that on which the dividend is being paid or ranks pari passu with or junior to such shares. Any Dividend Payment Date or other date on which dividends on the Company Preferred Securities are required to be paid as described in paragraph (A), (B) or (C) above is a "Mandatory Dividend Payment Date." The amount of dividends required to be paid on any Mandatory Dividend Payment Date (after giving effect to the Capital Limitation, if applicable) is called the "Mandatory Dividend Payment Amount". If a Dividend Payment Date is a Mandatory Dividend Payment Date, the Company will be required to pay the Mandatory Dividend Payment Amount as dividends on that date whether or not there are Available Distributable Profits and whether or not interest is paid on the Subordinated Notes. (iii) The prohibition on the payment of dividends on the Company Preferred Securities as described below is called the "Capital Limitation". Unless the Swiss Federal Banking Commission expressly permits otherwise, the Company will not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under dividends on the terms of Company Preferred Securities on any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred (whether or not it is a Mandatory Dividend Payment Date) if on such date the Bank is not in respect thereofcompliance, and instead, such Deferred Dividend shall be declared, become payable and be paid and or because of a distribution by the liability in respect thereof be incurred Bank or any of its subsidiaries of profits of the Bank (including a payment of dividends on the first succeeding Company Preferred Securities) would not be in compliance, with the Swiss Federal Banking Commission's minimum capital adequacy requirements applicable to the Bank as then in effect. (iv) The limitation or prohibition on the payment of dividends on the Company Preferred Securities as described below is called the "Distributable Profits Limitation". The Distributable Profits Limitation will not limit or prohibit payment of dividends up to the Mandatory Dividend Payment Amount as to a Mandatory Dividend Payment Date. On or before the Dividend Payment Date on which in April of each year, the Bank will deliver a certificate to the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of "Distributable Profits Limitation Certificate") specifying: (i) the amount otherwise payable in respect Distributable Profits of such share of Series A Preferred Stock in accordance with the foregoing paragraph Bank for the financial year ending on the preceding December 31 and (ii) the product Available Distributable Profits for payment of dividends on the Company Preferred Securities on the Dividend Payment Dates in the then current year. Unless the Company is required to pay as dividends the Mandatory Dividend Payment Amount for a Mandatory Dividend Payment Date, (A) the aggregate amount of dividends payable per share on the Company Preferred Securities that the Company may pay on the Dividend Payment Date in April of Common Stock the current year may not exceed the lesser of full dividends and the Available Distributable Profits set forth in such dividend period times Distributable Profits Limitation Certificate, and (B) the number aggregate amount of shares of Common Stock into which such share of Series A dividends on the Company Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Securities that the Company may pay on any subsequent Dividend Payment Date is in the period commencing on current year (or in January of the preceding following year in the case of Dividend Payment Date Dates occurring after - 2011) may not exceed the lesser of full dividends and the remaining amount of such Available Distributable Profits (orafter giving effect to the payment of dividends pursuant to this subclause or subclause (A), if there is no preceding above). (v) Except for the Mandatory Dividend Payment Date, the Issue Date) and ending Amounts required to be paid on the day immediately prior to the next Mandatory Dividend Payment Date. Dividends Dates: (A) dividends on Company Preferred Securities will not be payable on a Dividend Payment Date shall be payable to Holders of record if, on or before the close of business on tenth Business Day immediately preceding such Dividend Payment Date, the day on which the Board of Directors or Bank delivers a duly authorized committee thereof declares the dividend payable (each, a “No Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available Instruction to the Company or any other partyinstructing it not to pay dividends on such Dividend Payment Date; and If a No Dividend Instruction is given, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated then the Company must promptly give notice to appear and vote in favor of any proposal made at a meeting of stockholders holders of the Company Preferred Securities in order to effect the Stockholder Approval (or whose transferor Holder was so obligatedmanner described in Section 7.3(i) of the fact that it has received a No Dividend Instruction and the amount of dividends, if such Holder (or such transferor Holder or any, that will be paid on the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendrelated Dividend Payment Date.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Ubs Preferred Funding Trust Iii)

Dividends. (a) Holders With respect to each Dividend Period and subject to the rights of the holders of shares of Preferred Stock ranking senior to or on parity with the Series C Preferred Stock, the holders of shares of Series A C Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be when, as and if declared by the Board of Directors or a duly authorized committee thereofBoard, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance payment of doubtdividends, such Deferred Dividend shall be payable quarterly cumulative cash dividends in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The an amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each per share of Series A C Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph $21.25 and (ii) the product amount of (A) the aggregate regular quarterly cash dividends payable per share of Common Stock in for such dividend period times (B) Dividend Period upon the number of shares of Common Stock (or portion thereof) into which such share of Series A C Preferred Stock is then convertible. For purposes of this convertible in accordance with Section 3(a)VII hereof (but, a dividend period with respect to any Dividend Period ending after the Fifteenth Anniversary Date, no amount shall be paid in respect of clause (ii) of this paragraph in respect of the portion of such Dividend Period occurring after the Fifteenth Anniversary Date). Notwithstanding anything to the contrary contained herein, the amount of dividends described under either clause (i) or (ii) of this paragraph for the initial Dividend Period, or any other period shorter than a full Dividend Period, shall be prorated and computed on the basis of twelve 30-day months and a 360-day year. The dividends on the Series C Preferred Stock for each Dividend Period shall, if and to the extent declared or authorized by the Board, be paid in arrears (without interest or other amount) on the Dividend Payment Date is with respect thereto, and, if not paid on such date, shall accumulate, whether or not there are funds legally available for the period commencing on payment thereof and whether or not such dividends are declared or authorized. The record date for dividends to the preceding holders of shares of Series C Preferred Stock for any Dividend Payment Date Period shall be the same as the record date for the dividends to the holders of shares of Common Stock for such Dividend Period (or, if there no such record is no preceding set for the Common Stock, the fifteenth day of the calendar month in which the applicable Dividend Payment Date falls). Accrued and unpaid dividends for any past Dividend Periods may be declared and paid at any time, without reference to any Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders holders of record on such date, not exceeding 45 days preceding the close of business payment date thereof, as may be fixed by the Board. Any dividend payment made on the day on shares of Series C Preferred Stock shall first be credited against the earliest accumulated but unpaid dividend due with respect to such shares which the Board remains payable. No interest, or sum of Directors money in lieu of interest, shall be owing or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear dividend payment or payments on the Series C Preferred Stock, whether or not in arrears. (b) No dividend on the Series C Preferred Stock shall be declared by the Board or paid or set apart for payment by the Company at such time as the terms and vote in favor provisions of any proposal made at agreement of the Company, including any agreement relating to its indebtedness, prohibits such declaration, payment or setting apart for payment or provides that such declaration, payment or setting apart for payment would constitute a meeting breach thereof, or a default thereunder, or if such declaration or payment shall be restricted or prohibited by law. Notwithstanding the foregoing, dividends on the Series C Preferred Stock shall accumulate whether or not any of stockholders the foregoing restrictions exist (c) Except as provided in subsection V(d) herein, so long as any shares of Series C Preferred Stock are outstanding, (i) no dividends (other than in Common Stock or other Capital Stock of the Company in order ranking junior to effect the Stockholder Approval Series C Preferred Stock as to payment of dividends and amounts upon liquidation, dissolution or winding-up of the Company) shall be declared or paid or set apart for payment upon the Common Stock or any other class or series of Capital Stock of the Company ranking, as to payment of dividends or amounts distributable upon liquidation, dissolution or winding-up of the Company, on a parity with or junior to the Series C Preferred Stock, for any period and (ii) no Common Stock or other Capital Stock of the Company ranking junior to or on a parity with the Series C Preferred Stock as to payment of dividends or amounts upon liquidation, dissolution or winding-up of the Company, shall be redeemed, purchased or otherwise acquired for any consideration (or whose transferor Holder was any monies be paid to or made available for a sinking fund for the redemption of any such Capital Stock) by the Company (except by conversion into or exchange for other Capital Stock of the Company ranking junior to the Series C Preferred Stock as to payment of dividends and amounts upon liquidation, dissolution or winding-up of the Company or by redemptions for the purpose of maintaining the Company's qualification as a real estate investment trust ("REIT") for U.S. federal income tax purposes) unless, in the case of either clause (i) or (ii), full cumulative dividends have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for such payment on the Series C Preferred Stock for all Dividend Periods ending on or prior to the dividend payment date for the Common Stock or such other class or series of Capital Stock or the date of such redemption, purchase or other acquisition. (d) When dividends are not paid in full (or a sum sufficient for such full payment is not set apart for such payment) upon the Series C Preferred Stock and any other Capital Stock ranking on a parity as to payment of dividends with the Series C Preferred Stock, all dividends declared upon the Series C Preferred Stock and any other Capital Stock ranking on a parity as to payment of dividends with the Series C Preferred Stock shall be declared pro rata so obligated) that the amount of dividends declared per share of Series C Preferred Stock and such other Capital Stock shall in all cases bear to each other the same ratio that accrued dividends per share on the Series C Preferred Stock and such other Capital Stock (which shall not include any accumulation in respect of unpaid dividends for prior dividend periods if such Holder Capital Stock does not have a cumulative dividend) bear to each other. (or such transferor Holder or e) The holders of the Affiliates shares of eitherSeries C Preferred Stock shall not be entitled to any dividends in excess of full cumulative dividends as described in V(a) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendabove.

Appears in 1 contract

Samples: Merger Agreement (General Growth Properties Inc)

Dividends. (a) Holders The Grantee shall be entitled to receive dividends payable with respect to the Restricted Stock actually issued, whether or not vested, to the extent the Company declares and pays dividends on its Common Stock. (b) The dividend date with respect to Restricted Stock granted as part of shares of Series A Preferred the TBRE Award and the CPRE Award shall be the Effective Date and such Restricted Stock shall be entitled to cumulative dividends dividend equivalent amounts equal to the full distribution payable on Common Stock outstanding as of the Series A Preferred record dates for the first and second 2007 quarterly distributions even though they were not outstanding for the whole period. (c) The dividend date with respect to Restricted Stock payable semiannually, which dividends issued as part of the Earned SPRE Award shall be declared by the Board of Directors or a duly authorized committee thereofissuance date, out provided, however, that the Earned SPRE Award shall be entitled to the full dividend payable on Common Stock outstanding as of the assets record dates for the quarterly distribution next following the date on which they are issued based on performance as provided in Section 4(c)(ii), 4(c)(iii) or 4(c)(iv) hereof even though they may not have been outstanding for the whole period. (d) Commencing as of the Company legally available thereforEffective Date through the date the shares of Restricted Stock underlying the SPRE Award are actually issued to the Grantee or forfeited pursuant to Section 4(c)(vi), and shall be payable semiannually commencing on as the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Datecase may be, the Company is not permitted to declare or pay such shall provide a quarterly dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred equivalent payment in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect cash to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period Grantee in an amount equal to 20% of the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends dividend payable per share of Common Stock in such dividend period times (B) multiplied by the number of shares of Common Restricted Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a underlying the SPRE Award. (e) All dividends and dividend period equivalent payments paid with respect to a Dividend Payment Date is Restricted Stock shall be fully vested and non-forfeitable when paid, whether or not the period commencing underlying shares of Restricted Stock have been earned based on performance or have become vested based on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders passage of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendtime.

Appears in 1 contract

Samples: Award Agreement of Restricted Stock (Medical Properties Trust Inc)

Dividends. (a) Holders With respect to each Dividend Period and subject to the rights of the holders of shares of Preferred Stock ranking senior to or on parity with the Series C Preferred Stock, the holders of shares of Series A C Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be when, as and if declared by the Board of Directors or a duly authorized committee thereofBoard, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance payment of doubtdividends, such Deferred Dividend shall be payable quarterly cumulative cash dividends in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The an amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each per share of Series A C Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph $21.25 and (ii) the product amount of (A) the aggregate regular quarterly cash dividends payable per share of Common Stock in for such dividend period times (B) Dividend Period upon the number of shares of Common Stock (or portion thereof) into which such share of Series A C Preferred Stock is then convertible. For purposes of this convertible in accordance with Section 3(a)VII hereof (but, a dividend period with respect to any Dividend Period ending after the Fifteenth Anniversary Date, no amount shall be paid in respect of clause (ii) of this paragraph in respect of the portion of such Dividend Period occurring after the Fifteenth Anniversary Date). Notwithstanding anything to the contrary contained herein, the amount of dividends described under either clause (i) or (ii) of this paragraph for the initial Dividend Period, or any other period shorter than a full Dividend Period, shall be prorated and computed on the basis of twelve 30-day months and a 360-day year. The dividends on the Series C Preferred Stock for each Dividend Period shall, if and to the extent declared or authorized by the Board, be paid in arrears (without interest or other amount) on the Dividend Payment Date is with respect thereto, and, if not paid on such date, shall accumulate, whether or not there are funds legally available for the period commencing on payment thereof and whether or not such dividends are declared or authorized. The record date for dividends to the preceding holders of shares of Series C Preferred Stock for any Dividend Payment Date Period shall be the same as the record date for the dividends to the holders of shares of Common Stock for such Dividend Period (or, if there no such record is no preceding set for the Common Stock, the fifteenth day of the calendar month in which the applicable Dividend Payment Date falls). Accrued and unpaid dividends for any past Dividend Periods may be declared and paid at any time, without reference to any Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders holders of record on such date, not exceeding 45 days preceding the close of business payment date thereof, as may be fixed by the Board. Any dividend payment made on the day on shares of Series C Preferred Stock shall first be credited against the earliest accumulated but unpaid dividend due with respect to such shares which the Board remains payable. No interest, or sum of Directors money in lieu of interest, shall be owing or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote dividend payment or payments on the Series C Preferred Stock, whether or not in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendarrears.

Appears in 1 contract

Samples: Merger Agreement (Price Development Co Lp)

Dividends. (i) Dividends on the Company Preferred Securities will be payable from the date of initial issuance on a noncumulative basis, through October 2010 semi-annually in arrears on April [--] and October [--] of each year and thereafter on January [--], April [--], July [--] and October [--] of each year (each a "Dividend Payment Date" and each period from and including a Dividend Payment Date, or the date of initial issuance as applicable, to but not including the next Dividend Payment Date, a "Dividend Period") for the Dividend Period then ending, but only if the Company has legally available funds for such purpose and satisfies the other qualifications described below. Dividends will be payable on the liquidation preference (i) for each Dividend Period through the Dividend Period ending on the Dividend Payment Date in October 2010, at a fixed rate per annum on the liquidation preference equal to [--]% (calculated on the basis of a year of twelve 30-day months) and (ii) for each dividend period commencing on such Dividend Payment Date and thereafter, at a floating rate per annum on the liquidation preference equal to [--]% above three-month LIBOR (calculated on the basis of the actual number of days elapsed in a 360-day year). Dividends will be mandatorily due and payable in the circumstances described in Section 7.3(b)(ii) below, except that dividends will never be mandatorily due and payable if the Capital Limitation described below in Section 7.3(b)(iii) applies. If dividends on a Dividend Payment Date are neither mandatorily due and payable nor prohibited by application of the Capital Limitation, then (i) payment of dividends on the Company Preferred Securities will be limited by the Bank's Available Distributable Profits (see Section 7.3(b)(iv), below) and (ii) if the Bank delivers, on or before the tenth Business Day immediately preceding such Dividend Payment Date, an instruction (a "No Dividend Instruction") to the Company not to pay dividends on such Dividend Payment Date or to pay less than full dividends on such Dividend Payment Date, dividends payable on the related Dividend Payment Date will be limited as provided in such No Dividend Instruction (see Section 7.3(b)(v) below). LIBOR, with respect to a Determination Date, means the rate (expressed as a percentage per annum) for deposits in U.S. dollars for a three-month period commencing on the second London Banking Day immediately following that Determination Date that appears on Telerate Page 3750 as of 11:00 a.m. (London time) on that Determination Date. If such rate does not appear on Telerate Page 3750, LIBOR will be determined on the basis of the rates which deposits in U.S. dollars for a three-month period commencing on the second London Banking Day immediately following that Determination Date and in a principal amount equal to an amount of not less than $1,000,000 that is representative for a single transaction in such market at such time, are offered to prime banks in the London interbank market by four major banks in the London interbank market selected by the Calculation Agent, after consultation with the Company, at approximately 11:00 a.m., London time, on that Determination Date. The Calculation Agent will request the principal London office of each of such banks to provide a quotation at its rate. If at least two such quotations are provided, LIBOR with respect to that Determination will be the arithmetic mean of such quotations. If fewer than two quotations are provided, LIBOR in respect of that Determination Date will be the arithmetic mean of the rates quoted by three major money center banks in New York City selected by the Calculation Agent, after consultation with the Company, at approximately 11:00 a.m., New York City time, on that Determination Date for loans in U.S. dollars to leading European banks for a three-month period commencing on the second London Banking Day immediately following that Determination Date and in a principal amount equal to an amount of not less than $1,000,000. However, if the banks selected by the Calculation Agent to provide quotations are not quoting as mentioned in this paragraph, LIBOR for the applicable period will be the same as LIBOR as determined on the previous Determination Date. All percentages resulting from any calculations on the Company Preferred Securities will be rounded, if necessary, to the nearest one hundred-thousandth of a percentage point, with five one-millionths of a percentage point rounded upward (e.g., 9.876545% (or .09876545) being rounded to 9.87655% (or .0987655)), and all dollar amounts used in or resulting from such calculation will be rounded to the nearest cent (with one-half cent being rounded upward). (ii) The Company is required to pay dividends on the Company Preferred Securities in three circumstances, as follows: (A) If the Bank declares or pays dividends or makes any other payment or distribution on any Bank Junior Obligations and the Capital Limitation does not apply, then the Company will be required to pay full dividends on the -29- 34 Company Preferred Securities during the one-year period beginning on and including the earlier of the date on which such dividend was declared or the date on which such dividend or other payment was made. (B) If the Bank or any of its subsidiaries redeems, repurchases or otherwise acquires any Bank Parity Securities or Bank Junior Obligations for any consideration, except by conversion into or exchange for shares or Junior Obligations of the Bank and except as described below (and provided that the Capital Limitation does not apply), then the Company will be required to pay dividends on the Company Preferred Securities during the one-year period beginning on and including the date on which such redemption, repurchase or other acquisition occurred. (C) If (x) the Bank or any of its subsidiaries declares or pays any dividends or makes any other payment or distribution on any Bank Parity Securities on any date and (y) during the Relevant Period ending on and including such date there occurred a Dividend Payment Date as to which the Company paid no dividends or less than full dividends on the Company Preferred Securities, and provided that the Capital Limitation does not apply, then on that date the Company will be required to pay a special dividend on the Company Preferred Securities. The special dividend will be payable on that date whether or not that date is otherwise a Dividend Payment Date and, if it is a Dividend Payment Date, will be in addition to any other dividends required to be paid on such Dividend Payment Date. The special dividend will be in an amount that, when taken together with dividends previously paid on the Company Preferred Securities during the Relevant Period, represents the same proportion of full dividends on the Company Preferred Securities for all Dividend Payment Dates during the Relevant Period that the dividend on Bank Parity Securities paid on such date bears to full dividends on such Bank Parity Securities for the Relevant Period. Notwithstanding paragraph (B) above, the Company will not be required to pay dividends solely as a result of (a) Holders repurchases, redemptions or other acquisitions of Bank Parity Securities or ordinary shares in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or shareholder share purchase plan or in connection with the issuance of Bank Parity Securities or Bank Junior Obligations (or securities convertible into or exercisable for such Bank Parity Securities or Bank Junior Obligations) as consideration in an acquisition transaction, (b) market-making in the Bank Parity Securities or ordinary shares as part of the securities business of the Bank or any of its subsidiaries, (c) the purchase of fractional interests in shares of Series A Preferred Stock shall be entitled Bank Parity Securities or Bank Junior Obligations pursuant to cumulative the conversion or exchange provisions of such Bank Parity Securities or Bank Junior Obligations or the security being converted or exchanged, (d) any declaration of a dividend in connection with any shareholder's rights plan, or the issuance of rights, shares or other property under any shareholder's rights plan, or the redemption or repurchase of rights pursuant to any such plan, or (e) any dividend in the form of shares, warrants, options or other rights where the dividend shares or the shares -30- 35 issuable upon exercise of such warrants, options or other rights are the same shares as that on which the dividend is being paid or ranks pari passu with or junior to such shares. Any Dividend Payment Date or other date on which dividends on the Series A Company Preferred Stock payable semiannuallySecurities are required to be paid as described in paragraphs (A), which dividends shall be declared by the Board of Directors (B) or (C) above is a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “"Mandatory Dividend Payment Date”) at the rate per annum ." The amount of 6% per share on the Liquidation Preference; provided that, in the event that dividends required to be paid on any Mandatory Dividend Payment Date (after giving effect to the Capital Limitation, if applicable) is called the "Mandatory Dividend Payment Amount". If a Dividend Payment Date is a Mandatory Dividend Payment Date, the Company will be required to pay the Mandatory Dividend Payment Amount as dividends on that date whether or not there are Available Distributable Profits and whether or not interest is paid on the Subordinated Notes. (iii) The prohibition on the payment of dividends on the Company Preferred Securities as described below is called the "Capital Limitation". Unless the Swiss Federal Banking Commission expressly permits otherwise, the Company will not pay dividends on the Company Preferred Securities on any Dividend Payment Date (whether or not it is a Mandatory Dividend Payment Date) if on such date the Bank is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guarantyin compliance, or related agreementbecause of a distribution by the Bank or any of its subsidiaries of profits of the Bank (including a payment of dividends on the Company Preferred Securities) would not be in compliance, such dividend with the Swiss Federal Banking Commission's minimum capital adequacy requirements applicable to the Bank as then in effect. (iv) The limitation or prohibition on the payment of dividends on the Company Preferred Securities as described below is called the "Distributable Profits Limitation". The Distributable Profits Limitation will not limit or prohibit payment of dividends up to the Mandatory Dividend Payment Amount as to a Mandatory Dividend Payment Date. On or before the Dividend Payment Date in April of each year, the Bank will deliver a certificate to the Company (a “Deferred Dividend”"Distributable Profits Limitation Certificate") shall specifying: (i) the Distributable Profits of the Bank for the financial year ending on the preceding December 31 and (ii) the Available Distributable Profits for payment of dividends on the Company Preferred Securities on the Dividend Payment Dates in the then current year. Unless the Company is required to pay as dividends the Mandatory Dividend Payment Amount for a Mandatory Dividend Payment Date, (A) the aggregate amount of dividends on the Company Preferred Securities that the Company may pay on the Dividend Payment Date in April of the current year may not exceed the lesser of full dividends and the Available Distributable Profits set forth in such Distributable Profits Limitation Certificate, and (B) the aggregate amount of dividends on the Company Preferred Securities that the Company may pay on any subsequent Dividend Payment Date in the current year (or in January of the following year in the case of dividend payment dates occurring after October 2010) may not (v) Except for the Mandatory Dividend Payment Amounts required to be paid on Mandatory Dividend Payment Dates: (A) dividends on Company Preferred Securities will not be declared by payable on a Dividend Payment Date if, on or before the Board tenth Business Day immediately preceding such Dividend Payment Date, the Bank delivers a No Dividend Instruction to the Company instructing it not to pay dividends on such Dividend Payment Date; and (B) if, on or before the tenth Business Day immediately preceding such Dividend Payment Date, the Bank delivers a No Dividend Instruction to the Company limiting but not prohibiting the payment of Directorsdividends on such Dividend Payment Date, shall not dividends on the Company Preferred Security will be paid or payable on such Dividend Payment Date only to the extent permitted by such No Dividend Instruction. If a No Dividend Instruction is given, then the Company must promptly give notice to holders of the Company Preferred Securities in the manner described in Section 7.3(i) of the fact that it has received a No Dividend Instruction and no liability shall be incurred in respect thereofthe amount of dividends, and insteadif any, such Deferred Dividend shall be declared, become payable and that will be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding related Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Ubs Preferred Funding Co LLC I)

Dividends. (a) Holders So long as any shares of Series C Convertible Preferred Stock shall be outstanding, and subject to the right of holders of Common Stock to receive the Common Special Distribution, or if applicable, the right of the holders of the Convertible Preferred Stock and Purchaser in respect of the Warrant to receive the Other Equity Special Distribution, the holders of shares of Series A C Convertible Preferred Stock shall be entitled to cumulative dividends on the receive during each year with respect to each share of Series A C Convertible Preferred Stock payable semiannuallyStock, which dividends shall be when, as and if declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company any funds legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount payment of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Datein cash, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (ix) the amount otherwise payable Dividend Rate on the Liquidation Preference hereunder, or (y) all dividends paid in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per a share of Common Stock in (excluding the Common Special Distribution) during such dividend period times (B) year calculated on the basis of the number of shares of Common Stock into which such a share of Series A C Preferred Stock may be converted, regardless of whether such stock is then convertible. For Dividends in an amount equal to the greater of clauses (x) or (y) in the preceding sentence, shall begin to accrue on a cumulative basis from the Original Issue Date, whether or not there shall be net profits or net assets of the Company legally available for the payment of those dividends and shall continue to accrue on a daily basis thereon until the date such share is converted into Common Stock in accordance with the provisions of this Certificate. As set forth in the definition of Liquidation Preference, unpaid dividends, whether or not declared, shall be added to and become a part of the Liquidation Preference. (b) Notwithstanding the foregoing, during the period commencing on the Original Issue Date and ending on the fifth anniversary of the Original Issue Date, the Company may not declare or pay dividends (except as otherwise provided herein) in respect of the Series C Convertible Preferred Stock, any Parity Securities or any Junior Securities, but dividends in respect of the Series C Convertible Preferred Stock shall continue to accrue in accordance with the provisions of Section 4(a). Thereafter, dividends to the extent declared by the Board of Directors shall be payable quarterly in arrears on the first Business Day of each calendar quarter (a "Dividend Payment Date") to holders of record on the tenth Business Day immediately prior to such Dividend Payment Date. (c) So long as any share of the Series C Convertible Preferred Stock is outstanding, no dividends (other than the Common Special Distribution, or the Rights Offering, or if applicable, the Other Equity Special Distribution due to Purchaser in respect of the Warrant) shall be declared or paid or set apart for payment or other distribution, declared or made upon Junior Securities, nor shall any Junior Securities be redeemed, purchased or otherwise acquired for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any shares of any such stock) by the Company, directly or indirectly (except by conversion into or exchange for Junior Securities), other than (i) a redemption, purchase or other acquisition of shares of Common Stock (or Common Stock equivalents) made for purposes of this Section 3(aan employee incentive or benefit plan of the Company or any subsidiary or to satisfy the Company's obligations pursuant to any contract or security requiring the Company to purchase shares of Common Stock (or Common Stock equivalents), (ii) any distribution in respect of the TOPrS or the 5 1/4% Convertible Subordinated Debentures due 2016 required pursuant to the terms of such securities, (iii) dividends or distribution of shares of Common Stock or rights on Common Stock, (iv) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (v) purchases of shares of Common Stock (or Common Stock equivalents) from officers or employees of the Company or its Subsidiaries upon termination of employment or retirement, or (vi) as a result of a reclassification of the Company's capital stock for another class or series of the Company's capital stock, unless and until in each case (i) all accrued and unpaid dividends for all past dividend periods on the Series C Convertible Preferred Stock and any other Parity Securities shall have been paid and (ii) sufficient funds shall have been paid for the current dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) Series C Convertible Preferred Stock and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendParity Securities.

Appears in 1 contract

Samples: Certificate of Designation (Leucadia National Corp)

Dividends. (a) 3.1 The Holders of shares of Series A Preferred Stock shall be entitled to cumulative receive, when, as, and if declared by the Board of Directors, out of funds legally available therefor, cash dividends on each share of Cumulative Preferred Stock, at a rate per annum equal to the Series A Preferred Stock payable semiannually, which Dividend Rate (as defined below and applicable from time to time) on the Liquidation Preference and all accrued and unpaid dividends. Such dividends shall be cumulative and accrue and compound quarterly (whether or not earned or declared and whether or not there are funds legally available therefor) from the date of issuance thereof (the “Issue Date”) and shall be payable on each dividend payment date declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each of such date dates being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders holders of record on at the close of business on the day on which date specified by the Board of Directors or a duly authorized committee thereof declares at the time such dividend payable is declared (each, a the Dividend Record Date”). Notwithstanding anything in this Section 3(a) Any such Record Date shall be no more than 60 days and no less than 10 days prior to the contraryrelevant Dividend Payment Date. Any dividend not paid on the Dividend Payment Date therefor shall be fully cumulative and shall accrue and compound (whether or not earned or declared and whether or not there are funds legally available therefor) at the Dividend Rate per annum compounded quarterly from the date of such Dividend Payment Date and shall be in arrears until paid. 3.2 Each fractional share of Cumulative Preferred Stock outstanding shall be entitled to a ratably proportionate amount of all dividends accruing with respect to each outstanding share of Cumulative Preferred Stock pursuant to paragraph 3.1, and without limiting any other remedy available all such dividends with respect to such outstanding fractional shares shall be cumulative and shall accrue and compound (whether or not declared) from the Company date of the issuance of such share or any other partyfractional share, dividends as the case may be, and shall not accrue or be payable in the same manner and at such times as provided for in paragraph 3.1 with respect to dividends on each outstanding share of shares initially issued any Holder who is contractually obligated Cumulative Preferred Stock. Each fractional share of Cumulative Preferred Stock outstanding shall also be entitled to appear and vote in favor a ratably proportionate amount of any proposal other distributions made with respect to each outstanding share of Cumulative Preferred Stock, and all such distributions shall be payable in the same manner and at a meeting the same time as distributions with respect to each outstanding share of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendCumulative Preferred Stock.

Appears in 1 contract

Samples: Acquisition Agreement (NRG Energy, Inc.)

Dividends. (a) Holders The holders of shares of Series A Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be when, as and if declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company out of funds legally available therefor, and dividends on the shares of Preferred Stock, cumulative from the first date of issuance of any such shares (the "Initial Issuance Date"), at a rate per annum of 6.25% of the Liquidation Preference per share, payable in cash or common stock, subject to paragraph (l). Dividends on the shares of Preferred Stock shall be payable semiannually commencing quarterly in equal amounts (subject to paragraph (d)(v) hereunder with respect to shorter periods, including the first such period with respect to newly issued shares of Preferred Stock) in arrears on the 180th day following the Issue Date (February 15, May 15, August 15 and November 15 of each year, or the following Business Day if any such payment date is not a Business Day) , on the next succeeding Business Day (each such date being referred to herein as date, a "Dividend Payment Date”) at ", and each such quarterly period, a "Dividend Period"), in preference to and in priority over dividends on any Junior Stock. Such dividends shall be paid to the rate per annum holders of 6% per share record of the shares of Preferred Stock as they appear on the Liquidation Preference; provided thatapplicable Record Date. As used herein, in the event that term "Record Date" means, with respect to the dividends payable on February 15, May 15, August 15 and November 15 of each year, February 1, May 1, August 1 and November 1 of each year, respectively, or such other record date, not more than 60 days and not less than 10 days preceding the applicable Dividend Payment Date, as shall be fixed by the Board of Directors of the Company. Dividends on the shares of Preferred Stock shall be fully cumulative and shall accrue (whether or not declared and whether or not there are funds of the Company legally available for the payment of dividends) from the Initial Issuance Date (or the last Dividend Payment Date for which dividends were paid, as the case may be) based on a 360-day year comprised of twelve 30- day months. Accrued and unpaid dividends for any past Dividend Period may be declared and paid at any time, without reference to any Dividend Payment Date, to holders of record on such date, not more than 45 days prior to the Company is not permitted to declare or pay such dividend or incur such liability either (x) payment thereof, as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not may be declared fixed by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendCompany.

Appears in 1 contract

Samples: Quarterly Report

Dividends. (a) Holders The Certificate of shares of Series A Preferred Stock shall be entitled to cumulative dividends on Designations executed in connection with the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, Securities will provide that in the event that either (a) the Shelf Registration Statement is not filed with the Commission on or prior to the 90th calendar day following the date of the original issue of the Securities or (b) the Shelf Registration Statement is not declared effective on or prior to the 180th calendar day following the date of original issue of the Securities (such event referred to above, a "Registration Default"), the dividend rate for the Securities shall be increased ("Additional Dividends") by one-quarter of one percent (0.25%) per annum upon the occurrence of each Registration Default, which rate will increase by one quarter of one percent (0.25%) each 90-day period that such Additional Dividends continues to accrue under any Dividend Payment Datesuch circumstance, provided that the maximum aggregate increase in the dividend rate will in no event exceed one percent (1%) per annum. Following the cure of all Registration Defaults the accrual of Additional Dividends will cease and the dividend rate will revert to the original rate. If the Shelf Registration Statement is unusable by the Holders for any reason, and the aggregate number of days in any consecutive twelve-month period for which the Shelf Registration Statement shall not be usable exceeds 30 days in the aggregate, then the dividend rate for the Securities will be increased by 0.25% per annum of the liquidation preference of the Securities for the first 90-day period (or portion thereof) beginning on the 31st such date that such Shelf Registration Statement ceases to be usable, which rate shall be increased by an additional 0.25% per annum of the liquidation preference of the Securities at the beginning of each subsequent 90-day period, provided that the maximum aggregate increase in the dividend rate will in no event exceed one percent (1%) per annum. Any amounts payable under this paragraph shall also be deemed "Additional Dividends" for purposes of this Agreement. Upon the Shelf Registration Statement once again becoming usable, the dividend rate for the Securities will be reduced to the original dividend rate if the Company is not permitted to declare or pay otherwise in compliance with this Agreement at such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability time. Additional Dividends shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred computed based on the first succeeding Dividend Payment Date actual number of days elapsed in each 90-day period in which the Shelf Registration Statement is unusable. The Company shall notify the Transfer Agent within three business days after each and every date on which the Company is not prohibited from declaring, paying and incurring the liability an event occurs in respect of such Deferred Dividend which Additional Dividends are required to be paid (andan "Event Date"). Additional Dividends shall be paid by depositing with the Transfer Agent, in trust, for the avoidance benefit of doubtthe Holders of Registrable Securities, such Deferred Dividend on or before the applicable quarterly dividend payment date, immediately available funds in sums sufficient to pay the Additional Dividends then due. The Additional Dividends due shall be payable in addition to, and not in lieu of, any on each dividend which would ordinarily payment date to the record Holder of Securities entitled to receive the dividend payment to be payable paid on such succeeding Dividend Payment Date)date as set forth in the Certificate of Designations. The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will Each obligation to pay Additional Dividends shall be computed on deemed to accrue from and including the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End applicable Event Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.

Appears in 1 contract

Samples: Registration Rights Agreement (General Cable Corp /De/)

Dividends. (a) From and after the Effective Date and prior to the Periodic Dividend Commencement Date, Holders of shares of Series A Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors, out of the funds legally available therefor, dividends in the amount determined as set forth in Section 4(b)(i), and no more. In the event that the Shareholder Proposals are not approved by the holders of Common Stock in the manner required therefor by the Idaho Business Corporation Act prior to the Periodic Dividend Commencement Date, from and after the Periodic Dividend Commencement Date, Holders shall be entitled to receive, when, as and if declared by the Board of Directors, out of the funds legally available therefor, cumulative cash dividends in the amount determined as set forth in Section 4(b)(ii), and no more; provided, however, from and after such date as the Shareholder Proposals are approved in the manner required therefor by the Idaho Business Corporation Act, Holders shall be entitled to receive, when, as and if declared by the Board of Directors, out of the funds legally available therefor, dividends in the amount determined as set forth in Section 4(b)(i), and no more. Except as otherwise provided herein, such dividends shall be payable quarterly in arrears (as provided below in this Section 4(a)), but only when, as and if declared by the Board of Directors, on March 15, June 15, September 15 and December 15 (each, a “Dividend Payment Date”), commencing on [March 15, 2012]; provided, that if any such Dividend Payment Date would otherwise occur on a day that is not a Business Day, such Dividend Payment Date shall instead be (and any dividend payable on Series B Preferred Stock on such Dividend Payment Date shall instead be payable on) the immediately succeeding Business Day, unless such immediately succeeding Business Day falls in the next calendar month, in which case such Dividend Payment Date shall instead be (and any such dividend shall instead be payable on) the immediately preceding Business Day. Dividends on Series B Preferred Stock shall accrue at any time that dividends on the Series A B Preferred Stock are cumulative (whether or not in any dividend period or periods (each, a “Dividend Period”) there shall be funds of the Company legally available for the payment of such dividends and whether or not such dividends are authorized or declared) and accrued dividends shall accumulate to the extent not paid on the Dividend Payment Date first following the Dividend Period for which they accrue. As used herein, the term “accrued” with respect to dividends includes both accrued and accumulated dividends. Dividends that are payable semiannuallyon Series B Preferred Stock on any Dividend Payment Date will be payable to holders of record of Series B Preferred Stock as they appear on the stock register of the Company on the applicable record date, which dividends shall be declared the 15th calendar day before such Dividend Payment Date or such other record date fixed by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall Directors that is not be paid or payable on more than 60 nor less than 10 days prior to such Dividend Payment Date and no liability (each, a “Record Date”). Any such day that is a Record Date shall be incurred in respect thereof, a Record Date whether or not such day is a Business Day. Each Dividend Period shall commence on and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding include a Dividend Payment Date (other than the initial Dividend Period, which shall commence on which and include the Company is not prohibited from declaringdate of original issue of the Series B Preferred Stock, paying provided that, for any share of Series B Preferred Stock issued after such original issue date, the initial Dividend Period for such shares may commence on and incurring include such other date as the liability Board of Directors or a duly authorized committee of the Board of Directors shall determine and publicly disclose) and shall end on and include the calendar day preceding the next Dividend Payment Date. Dividends payable on the Series B Preferred Stock in respect of such Deferred any Dividend (and, for the avoidance of doubt, such Deferred Dividend Period shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed by the Company on the basis of a 360-day year consisting and the actual number of twelve 30-day months. Commencing on and following the Meeting End Datedays elapsed in such Dividend Period, in the event except that dividends are paid for the initial period will be calculated from the original issue date. Dividends payable in respect of a Dividend Period shall be payable in arrears (i.e., on shares the first Dividend Payment Date after such Dividend Period). (b) (i) Subject to Section 4(a), if the Board of Directors declares and pays a dividend or other distribution in respect of Company Common Stock in any dividend period (other than with respect to a Permitted Rights Offering), then the Board of Directors shall declare and pay to the Holders of the Series A B Preferred Stock, then on the same dates on which such dividend or other distribution is declared and paid on the Company Common Stock, a dividend shall be payable or other distribution in an amount per share of Series B Preferred Stock equal to the product of (x) the per share dividend or other distribution declared and paid in respect of each share of Series A Preferred Company Common Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (By) the number of shares of Company Common Stock into which such share shares of Series A B Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders convertible as of the Company in order to effect the Stockholder Approval (Record Date for such dividend or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legenddistribution.

Appears in 1 contract

Samples: Securities Purchase Agreement (Intermountain Community Bancorp)

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Dividends. (a) Holders The holders of shares of Series A the PIK Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive when, which dividends shall be as and if declared by the Corporation's Board of Directors or a duly authorized committee thereofDirectors, out of the assets of the Company funds legally available therefor, cumulative dividends payable on the shares of the PIK Preferred Stock for each quarterly dividend period (a "Quarterly Dividend Period"), which Quarterly Dividend Periods shall commence on March 15, June 15, September 15 and December 15 of each year and shall end on and include the day next preceding the first day of the next Quarterly Dividend Period, at a rate of 8% per annum, compounded annually, in respect of the Liquidation Preference (as defined in Section 5(a)). All such dividends shall be payable semiannually on March 15, June 15, September 15 and December 15 of each year (each, a "Dividend Payment Date"), commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability next succeeding the date of issuance of the Preferred Stock. Such dividends shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders holders of record on at the close of business on the day on which date specified by the Board of Directors at the time such dividend is declared, which date shall not be more than 50 or a duly authorized committee thereof declares less than 10 days prior to the dividend payable applicable Dividend Payment Date. The Corporation may, at its option, pay that portion of such dividends through the issuance of that number of additional shares of the PIK Preferred Stock having an aggregate Liquidation Preference equal to the aggregate dollar amount of dividends to be paid on such Dividend Payment Date multiplied by the Permitted Portion (each, a “Dividend Record Date”as defined in Section 7). Notwithstanding anything Dividends accrue from the date of issuance, shall accrue on a daily basis without regard to the occurrence of a Dividend Payment Date or the declaration of any dividend, and will accumulate until paid in cash or additional shares of the PIK Preferred Stock. In the event that a dividend is not declared on any Dividend Payment Date (the "Contemplated Date"), such dividend must be declared on the first subsequent Dividend Payment Date on which a dividend is declared and will accumulate from the Contemplated Date. No fractional shares of PIK Preferred Stock shall be issued, so that the number of shares permitted to be paid as a dividend pursuant to this Section 3(a) 3 shall be rounded to the contrarynearest whole number of shares. All dividends paid in additional shares of PIK Preferred Stock shall be deemed issued on the applicable Dividend Payment Date, and without limiting any other remedy available to the Company or any other partywill thereupon be duly authorized, dividends shall not accrue or be payable in respect validly issued, fully paid and nonassessable and free and clear of shares initially issued any Holder who is contractually obligated to appear all liens and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendcharges.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Digital Television Services of Kansas LLC)

Dividends. (a) Holders The holders of shares of Series A Preferred Stock shall be entitled to receive dividends (the "Preferred Dividend") payable in cash at the rate of $10.00 per share per annum or such rate as modified under Section 2(b) herein (the "Dividend Rate") on a cumulative dividends basis from the actual date of original issue of each share of Preferred Stock (the "Original Issue Date"), whether or not declared, out of funds legally available therefor, payable quarterly in arrears on the Series A first day of each February, May, August, and November in each year (each a "Dividend Payment Date"). Payments shall commence on the first such date to occur after the Original Issue Date. Each such Preferred Dividend shall be payable to the holders of record of the Preferred Stock payable semiannuallyat the close of business on the preceding December 31, which dividends March 31, June 30, and September 30, respectively. Each dividend shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and no more than fifteen (15) days prior to its respective record date. Payments shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% equal $2.50 per share on the Liquidation Preference; provided that, in the event that on any each Dividend Payment Date or such lesser amount as shall result from any proration in respect of any partial quarterly period. The amount of Preferred Dividends payable upon the occurrence of any event described in Sections 3, 5 or 7 hereof shall be computed by multiplying the applicable Dividend Rate by a fraction, the numerator of which shall be the number of days since the preceding Dividend Payment Date to the date of payment of such partial Preferred Dividend and the denominator of which shall be 360. (b) Beginning on the fifth anniversary of the Original Issue Date, the Company is not permitted Dividend Rate shall be adjusted by increasing the Dividend Rate to declare $20.00 per share per annum, with the quarterly Preferred Dividend being increased to $5.00 per share. (c) So long as any of the shares of Preferred Stock are outstanding, no dividends (other than dividends or pay distributions paid in shares of or options, warrants or rights to subscribe for or purchase shares of Common Stock) shall be declared or paid or set apart for payment by the Corporation or other distribution of cash or other property declared or made directly or indirectly by the Corporation or any affiliate or any person acting on behalf of the Corporation or any of its affiliates with respect to any shares of Common Stock or other capital stock over which the Preferred Stock has preference or priority in the payments of dividends or in the distribution of assets on any liquidation, dissolution or winding up of the Corporation ("Junior Stock"), nor shall any shares of Junior Stock be redeemed, purchased or otherwise acquired (other than a (i) purchase or other acquisition of Common Stock made for purposes of any employee incentive or benefit plan of the Corporation or any subsidiary or (ii) the purchase of up to 125,000 shares of Common Stock (as adjusted for stock splits or stock dividends) pursuant to the "Put Option" contained in the Asset Purchase Agreement dated as of December 3, 1997, by and among the Corporation and the parties thereto) for any consideration (or any moneys be paid to or made available for a sinking-fund for the redemption of any shares of any such dividend stock) directly or incur such liability either indirectly by the Corporation or any affiliate or any person acting on behalf of the Corporation or any of its affiliates (except by conversion into or exchange for Junior Stock), nor shall any other cash or other property otherwise be paid or distributed to or for the benefit of any holder of shares of Junior Stock in respect thereof, directly or indirectly, by the Corporation or any affiliate or any person acting on behalf of the Corporation or any of its affiliates unless in each case (x) as a matter the full Preferred Dividends (including all accumulated, accrued and unpaid dividends) on all outstanding shares of law Preferred Stock shall have been paid or such dividends have been declared and set apart for payment for the current dividend periods with respect to the Preferred Stock and (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) sufficient funds shall not be declared by the Board of Directors, shall not be have been paid or payable set apart for the payment of the full Preferred Dividend for the current dividend period with respect to the Preferred Stock. (d) If and whenever a quarterly Preferred Dividend is not paid on a Dividend Payment Date (whether or not declared), then the amount of such Preferred Dividend remaining in arrears and unpaid from time to time shall bear interest from such Dividend Payment Date and no liability shall be incurred until the date it is paid in respect thereof, and instead, such Deferred Dividend shall be declared, become full at an annual rate equal to ten percent (10%). Interest payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend Preferred Dividends which are in arrears shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of twelve (12) 30 - day months and a 360-day year consisting of twelve 30-day monthsyear. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect No payment shall be applied to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable due on a Dividend Payment Date unless and until all arrears, including interest thereon, with respect to accumulated, accrued but unpaid Preferred Dividends shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendhave been paid.

Appears in 1 contract

Samples: Preferred Stock Purchase Agreement (Berger Holdings LTD)

Dividends. (a) Holders A. The holders of shares of Series A Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereofreceive dividends, out of the any assets of the Company legally available therefortherefore, prior to, and shall be payable semiannually commencing in preference to, any declaration or payment of any dividend on the 180th day following the Issue Date (or the following Business Day if any such payment date is not Common Stock of this Company, at a Business Day) (each such date being referred per share rate equal to herein as a “Dividend Payment Date”) at the rate six percent per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis Stated Value of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then which is payable upon conversion (including upon Redemption and Automatic Conversion) as set forth below. Dividends shall begin to accrue as of the Issuance Date and are based upon a dividend shall 360 calendar day year. Any dividends payable pursuant to the provisions of this paragraph shall, at the Company's option, be payable in respect cash, or shares of Common Stock subject to an effective registration statement within five Business Days of when due. The number of shares of Common Stock to be issued by the Company in lieu of a cash payment for dividends due as set forth herein shall be equal to the number of shares of Common Stock resulting from dividing the dollar amount of dividends owed by the Closing Bid Price of the Common Stock (as defined below) on such date as the dividends are payable (if such date is not a Trading Day, then the next Trading Day immediately thereafter). 2 B. Such dividends shall accrue on each share of Series A Preferred Stock for from the Issuance Date, and shall accrue from day to day whether or not earned or declared. Such dividends shall be cumulative so that if such period in an amount equal to the greater of (i) the amount otherwise payable dividends in respect of such share of any previous or current annual dividend period, at the annual rate specified above, shall not have been paid or declared and a sum sufficient for the payment thereof set apart, for all Series A Preferred Stock in accordance with at the foregoing paragraph and (ii) time outstanding, the product of (A) deficiency shall first be fully paid before any dividend or other distribution shall be paid on or declared or set apart for the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertibleor Common Stock. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing Dividends on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date Series A Preferred Stock shall be payable non-participating and the holders of the Series A Preferred Stock shall not be entitled to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything participate in this Section 3(a) to the contrary, and without limiting any other remedy available to dividends beyond the Company or any other party, cumulative dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendspecified herein.

Appears in 1 contract

Samples: Series a Preferred Stock Purchase Agreement (Wordcruncher Internet Technologies)

Dividends. (a) Subject to applicable law, except for share capitalizations or distributions for which adjustments are to be made pursuant to Section 7, Holders of shares of Series A Preferred Stock shall be entitled to cumulative receive, and the Company shall pay, dividends on Preference Shares equal (on an as-if-converted-to-Ordinary Shares basis, disregarding for such purpose any conversion limitations or restrictions hereunder) to and in the Series A Preferred Stock payable semiannuallysame form as dividends actually paid on the Ordinary Shares when, as and if such dividends are paid on Ordinary Shares. If the Nasdaq Approval is not obtained at the Company’s 2023 annual general meeting (the “2023 Meeting”), subject to applicable corporate law, the Company shall pay a non-cumulative cash dividend on each Preference Share out of any funds that are legally available therefor under applicable corporate law at the rate of fourteen percent (14%) per annum of the outstanding Stated Value of such Preference Share, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing annually in arrears on the 180th day following the Issue Date September 30 (or the following Business Day if a “Cash Dividend”) of each year (unless any such payment date day is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the which event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Cash Dividend shall be payable in addition toon the next succeeding Business Day, without accrual to the actual payment date), initially commencing to accrue on the 2023 Meeting date and not in lieu of, any dividend ending on the Nasdaq Approval Date. Any Cash Dividend which would ordinarily be is payable on such succeeding Dividend Payment Date). The amount of dividends payable the Preference Shares pursuant to this Section 3 for any other period that is shorter or longer than a full semiannual dividend period will shall be computed on the basis of a 360-360 day year consisting and the actual number of twelve 30-day monthsdays elapsed. Commencing No other dividends shall be paid on and following the Meeting End Date, in Preference Shares. In the event that dividends are paid on shares of Common Stock in the Company is prohibited from paying any dividend period with respect Cash Dividend under the applicable corporate law, the Company shall so notify to the Series A Preferred StockHolder in writing setting forth the basis therefor, then a dividend and in connection therewith, the Company shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal issue and deliver to the greater Holder an unsecured promissory note equivalent to the amount of the required Cash Dividend so prohibited (“Prohibited Cash Dividend”), which promissory note (any such note, a “14% Note”) shall (i) mature in one year from the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and Cash Dividend payment date, (ii) discharge in full the product Company’s obligation to pay such Prohibited Cash Dividend and no Cash Dividend shall be deemed to have accrued and (iii) accrual of (A) simple interest at 14% per annum shall be computed on basis of a 360 day year and the aggregate dividends payable per share of Common Stock in such dividend period times (B) the actual number of shares of Common Stock into which such share of Series A Preferred Stock is then convertibledays elapsed. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing The Company shall not pay any dividends on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to Ordinary Shares unless the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who simultaneously complies with this provision and no 14% Note is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendoutstanding.

Appears in 1 contract

Samples: Note Purchase Agreement (Yatra Online, Inc.)

Dividends. (a) From and after the date of issuance of each share of the Series A Preferred Shares, Holders shall be entitled to receive in respect of shares each such share of Series A Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyShares, which dividends shall be only if and when declared by the Company’s Board of Directors or a duly any authorized committee thereof, out of cumulative dividends accruing on a daily basis at the assets of the Company legally available therefor, and shall be payable semiannually commencing Dividend Rate on the 180th day following the Issue Date (or the following Business Day if any Current Liquidation Preference of such payment date is not a Business Day) (share of Series A Preferred Shares as in effect from time to time, payable in cash in arrears on each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Regular Dividend Payment Date, and, to the Company is extent not permitted paid on any Regular Dividend Payment Date, automatically compounded (regardless of whether or not declared), quarterly in arrears on such Regular Dividend Payment Date. Regular Dividends will be calculated on the basis of actual days elapsed over a year of 360 days consisting of 12 30- day months. (b) At any time and from time to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under time when there are Accrued Dividends, the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Company’s Board of Directors, shall not be paid or payable any authorized committee thereof, may declare and cause the Company to pay in cash, to the Holders on such Dividend Payment Date and no liability a record date fixed in accordance with Section 213 of the DGCL (which record date shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and not less than three nor more than 60 days prior to the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding next occurring Regular Dividend Payment Date). The amount , a dividend per share of dividends payable for any other period that is shorter Series A Preferred Shares equal to all or longer than a full semiannual dividend period will be computed portion of such Accrued Dividends on such share of Series A Preferred Shares to the next occurring Regular Dividend Payment Date. (c) Except as set forth in Section 2.02(a) in respect of the compounding of Accrued Dividends if not paid on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End applicable Regular Dividend Payment Date, in the event that dividends are paid on shares of Common Stock in any dividend period (i) no Regular Dividend may be declared with respect to the Series A Preferred Shares unless paid to the Holders immediately in cash (it being understood that no Regular Dividends may be declared and paid in securities or otherwise “in kind”) and (ii) no Regular Dividend shall be declared or paid in anticipation of a redemption of the Series A Preferred Shares or any liquidation of the Company. (d) No dividend or other distribution on the Class A Common Stock (whether in cash, securities or other property, or any combination of the foregoing) will be declared or paid unless, at the time(s) of such declaration and payment, an equivalent dividend or distribution is declared and paid, respectively, on the Series A Preferred Shares (such a dividend or distribution on the Series A Preferred Shares, a “Participating Dividend,” and such corresponding dividend or distribution on the Class A Common Stock, then a dividend shall be the “Common Stock Participating Dividend”), such that (1) the record date and the payment date for such Participating Dividend occur on the same dates as the record date and payment date, respectively, for such Common Stock Participating Dividend and (2) the kind and amount of consideration payable in respect of each per share of Series A Preferred Shares in such Participating Dividend is the same kind and amount of consideration that would be payable in the Common Stock for such period Participating Dividend in an amount respect of a number of shares of Class A Common Stock equal to the greater number of (i) the amount otherwise payable shares of Class A Common Stock that would be issuable in respect of such one share of Series A Preferred Stock Shares that is converted pursuant to an Optional Conversion (without giving effect to any limitations on conversion set forth in accordance the proviso to Section 5.01 or Section 5.04) with a Conversion Date occurring on such record date (subject to the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of same arrangements, if any, in such Common Stock Participating Dividend not to issue or deliver a fractional portion of any security or other property). Notwithstanding the foregoing, no Participating Dividend will be required to be declared or paid in such dividend period times (B) respect of any event for which an adjustment to the number of Conversion Price is required pursuant to Section 5.03. If the Redemption Date for any shares of Common Stock into which such share of Series A Preferred Stock Shares is then convertible. For purposes on or after the close of this Section 3(a), business on a dividend period with respect record date set for payment of any Participating Dividends and prior to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding applicable Dividend Payment Date, the Issue Date) and ending on Holder of such shares as of such record date shall be entitled to receive such Participating Dividend, notwithstanding the day immediately redemption of such shares prior to the next applicable Dividend Payment Date. Dividends payable on a Dividend Payment . (e) If the Conversion Date shall be payable for any shares of Series A Preferred Shares is prior to Holders of record on the close of business on a record date set for the day on which payment of any Dividends, the Board Holder of Directors or a duly authorized committee thereof declares the dividend payable (each, a “such shares will not be entitled to such Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of such record date. If the Conversion Date for any shares initially issued any Holder who of Series A Preferred Shares is contractually obligated to appear and vote in favor on or after the close of business on a record date set for payment of any proposal made at a meeting Dividends and prior to the applicable Dividend Payment Date, the Holder of stockholders such shares as of such record date shall be entitled to receive such Dividend, notwithstanding the Company in order conversion of such shares prior to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendapplicable Dividend Payment Date.

Appears in 1 contract

Samples: Securities Purchase Agreement (Evolent Health, Inc.)

Dividends. (a) Holders of So long as any shares of Series A Preferred Stock shall be outstanding, the holders of such Preferred Stock shall be entitled to cumulative receive out of any funds legally available therefor, preferential dividends at the Dividend Rate on the Series A Preferred Stock Liquidation Preference hereunder, payable semiannually, which quarterly on the last Business Day of each calendar quarter. Such dividends shall be cumulative and begin to accrue from the Original Issue Date, whether or not declared by the Board of Directors and whether or a duly authorized committee thereof, out of the not there shall be net profits or net assets of the Company legally available therefor, and for the payment of those dividends. Any dividends payable according to this Section 3 shall be paid subsequent to any and all dividends which are payable semiannually commencing on to the 180th day following holders of the Issue Date Series A Preferred Stock pursuant to the terms and provisions of the Second Amended and Restated Certificate of Designation. (or b) The dividend will be payable (i) prior to the following Business Day if any such payment effective date is not of a Business Day) (each such date being referred Chapter 11 plan of reorganization with respect to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided thatCompany, in the event that on any Dividend Payment Dateform of additional shares of Preferred Stock having a Liquidation Preference equal to such dividend amount, or (ii) following the effective date of a Chapter 11 plan of reorganization with respect to the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under and at the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End DateCompany's election, in the event that dividends are paid on cash or in shares of Common Stock in having an Appraised Value equal to such cash dividend payment. (c) So long as any dividend period with respect to the Series A shares of Preferred Stock, then a dividend Stock shall be payable outstanding, (i) no dividend whatsoever shall be paid or declared, and no distribution shall be made, on account of any Common Stock until all dividends in respect of each share of Series A the Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable all past and current dividend periods have been paid and all amounts in respect of such share the redemption of Series A Preferred Stock in accordance with the foregoing paragraph pursuant to Section 6 have been paid, and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of no shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors purchased, redeemed or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to acquired by the Company and no funds shall be paid into or any other partyset aside or made available for a sinking fund for the purchase, redemption or acquisition thereof until all dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear the Preferred Stock for all past and vote current dividend periods have been paid and all amounts in favor of any proposal made at a meeting of stockholders respect of the Company in order redemption of Preferred Stock pursuant to effect Section 6 have been paid. (d) Notwithstanding anything to the Stockholder Approval (contrary contained herein, if, on any date, an Event of Default shall have occurred and be continuing, whether or whose transferor Holder was so obligated) if not by reason of the absence of legally available funds therefor, then the Dividend Rate on the shares of Preferred Stock shall be increased to a compound annual rate of 16%, for as long as such Holder (or such transferor Holder or the Affiliates Event of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendDefault is continuing.

Appears in 1 contract

Samples: Exchange Agreement (Coram Healthcare Corp)

Dividends. (a) Holders The holders of shares of the Series A B Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Datecollectively, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”"Holders") shall not be declared by entitled to receive dividends unless, within six (6) months following the Board date of Directorsissuance of the Series B Preferred Stock to the Holders (the "Amendment Date"), shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is has not prohibited from declaring, paying and incurring the liability amended its certificate of incorporation in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than order to authorize a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the sufficient number of shares of Common Stock into which such share all of the issued and outstanding shares of Series A B Preferred Stock is then convertiblemay be converted. For purposes In the event the Company does not make such an amendment by the Amendment Date, the Holders shall be entitled to receive cumulative dividends per share at the rate of this Section 3(aeight percent (8%) per annum of the Per Share Liquidation Preference (as defined below), a which shall accrue daily from the date of issuance of the Series B Preferred Stock, and which shall be compounded quarterly. Such dividends shall be payable by the Company (i) prior to payment of any dividend period with respect to Junior Securities and shall be equal, if not greater, in amount to any such dividend on a Dividend Payment Date is per share basis; and (ii) on parity with any dividend with respect to the period commencing Parity Securities and at an amount equal to the dividend on a per share basis received by the preceding Dividend Payment Date holders of the Parity Securities. (orb) Any and all dividends shall be payable out of any cash legally available therefor, and if there is no preceding Dividend Payment Datenot a sufficient amount of cash available, then out of the Issue Date) and ending remaining assets of the Company legally available therefor (valued at the fair market value thereof on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders date of record on the close of business on the day on which payment, as determined by the Board of Directors or a duly authorized committee thereof declares of the dividend payable (eachCompany); provided, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) however, that to the contraryextent funds or assets are not legally available for the payment of any dividend, and without limiting any other remedy available to then the Company shall pay such unpaid dividends promptly as funds or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendassets become legally available therefor.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Fusion Fund Inc /De/)

Dividends. (a) Holders The holders of the then outstanding shares of Series A C Preferred Stock shall will be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, receive out of the assets funds of the Company legally available therefortherefore, cumulative dividends accruing on a daily basis from the Original Issuance Date (as hereinafter defined) through and shall be including the date on which such dividends are paid at the annual rate of 10% (the "Applicable Rate") of the Liquidation Preference (as hereinafter defined) per share of the Series C Preferred Stock, payable semiannually on each March 31, June 30, September 30 and December 31, commencing on the 180th day following the Issue Date June 30, 2003 (or the following Business Day each such date, a "Dividend Payment Date") and calculated in accordance with Section 3(d); provided that: (i) if any such payment date Dividend Payment Date is not a Business Day) (each Day then such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to on the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph next Business Day, and (ii) the product of (A) the aggregate accumulated and unpaid dividends payable per share of Common Stock in such dividend for any prior quarterly period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertiblemay be paid at any time. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date Such dividends shall be payable to Holders cumulative whether or not earned or declared and whether or not there are profits, surplus or other funds of record on the close Company legally available for the payment of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (eachdividends. The term "Original Issuance Date" means March [27], a “Dividend Record Date”)2003. Notwithstanding anything The dividends provided for in this Section 3(a) are hereinafter referred to as "Dividends." Dividends shall be payable, at the option of the Company, either (i) in cash, (ii) by issuance of additional shares of Series C Preferred Stock (including fractional shares) having an aggregate Liquidation Preference equal to the contraryamount of the dividend to be paid, or (iii) any combination thereof. All dividends paid with respect to shares of Series C Preferred Stock, whether in cash or shares of Series C Preferred Stock, pursuant to this Section 3 shall be made pro rata among the holders thereof based upon the aggregate accrued but unpaid dividends on the shares held by each such holder. If and without limiting when any other remedy available to shares are issued under this Section 3(a) for the Company payment of accrued dividends, such shares shall be validly issued and outstanding and fully paid and nonassessable. For all purposes hereunder, dividends on the Series C Preferred Stock shall be treated as if the same were paid on the relevant Dividend Payment Date, whether or any other partynot the same were in fact so paid or declared. In the case of shares of Series C Preferred Stock issued as a dividend on shares of Series C Preferred Stock, dividends shall not accrue or and be payable cumulative from the Dividend Payment Date in respect of which such shares initially issued any Holder who is contractually obligated were scheduled to appear and vote in favor of any proposal made at be paid pursuant to this Section 3(a) as a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legenddividend.

Appears in 1 contract

Samples: Stock Purchase Agreement (Panavision Inc)

Dividends. (a) Holders of shares of Series A Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be when, as and if declared by the Board of Directors or a duly authorized committee thereof, out of the assets funds of the Company legally available thereforfor payment, cumulative dividends in cash at the Dividend Rate. To the extent that the Company is legally permitted to pay dividends, the Company’s Board of Directors shall declare and the Company shall pay dividends in cash on each Dividend Payment Date. Dividends on the Preferred Stock shall be payable quarterly in arrears at the Dividend Rate, and shall accumulate, whether or not earned or declared, from the most recent date to which dividends have been paid, or, if no dividends have been paid, from the Issue Date (whether or not in any Dividend Period or Periods any agreements of the Company prohibit the current payment of dividends, there shall be funds of the Company legally available for the payment of such dividends or the Company declares the payment of dividends), and shall be paid in cash. Dividends shall be payable semiannually in arrears on each Dividend Payment Date (commencing on August 15, 2015) to the 180th day following holders of record of Preferred Stock as they appear on the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) Company’s stock register at the rate per annum close of 6% per share business on the Liquidation Preference; provided that, in the event that relevant Dividend Record Date. Accumulations of dividends on shares of Preferred Stock for any past Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not Periods may be declared by the Board and paid at any time to holders of Directors, shall record of Preferred Stock not be paid or payable on such more than 30 nor less than 10 calendar days immediately preceding any Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, not bear interest. The Company shall provide not less than 20 Scheduled Trading Days’ notice prior to any such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends Dividends payable for any other period that is shorter or longer less than a full semiannual dividend period will quarterly Dividend Period (based upon the number of days elapsed during the period) shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following . (b) No dividend shall be declared or paid upon, or any sum set apart for the Meeting End Datepayment of dividends upon, in any outstanding share of the event that dividends are paid on shares of Common Preferred Stock in any dividend period with respect to any Dividend Period unless all dividends for all preceding Dividend Periods have been declared and paid, or declared and a sufficient sum has been set apart for the Series A payment of such dividend, upon all outstanding shares of Preferred Stock, then . (c) 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 Parity Stock or Junior Stock, nor may any Parity Stock or Junior Stock be redeemed, purchased or otherwise acquired for any consideration (or any money paid to or 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 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 Junior 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 all Accumulated Dividends shall have been or contemporaneously are declared and paid, or are declared and a sum sufficient for the payment thereof is set apart for such payment, on the Preferred Stock and any Parity Stock for all dividend payment periods ending on or prior to the date of such declaration, payment, redemption, purchase or acquisition. Notwithstanding the foregoing, if full dividends have not been paid on the Preferred Stock and any Parity Stock, dividends may be payable 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 in excess of full cumulative dividends. (e) If any Dividend Payment Date falls on a day that is not a Business Day, the required payment will be on the next succeeding Business Day and no interest or dividends on such payment will accrue or accumulate as the case may be, in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of delay. (if) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number The Holders of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on at the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares Dividend Record Date shall be entitled to receive the dividend payable (each, a “payment on those shares on the corresponding Dividend Payment Date notwithstanding the conversion of such shares in accordance with Section 9 following such Dividend Record Date or the Company’s default in payment of the dividend due on such Dividend Payment Date”). Notwithstanding anything Except as provided in this Section 3(a) to the contrarySections 9, 10 and without limiting any other remedy available to 11, the Company shall make no payment or any other partyallowance for unpaid dividends, whether or not in arrears, on converted shares of Preferred Stock or for dividends shall not accrue or be payable in respect on the shares of shares initially Common Stock issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendupon conversion.

Appears in 1 contract

Samples: Purchase Agreement (MRC Global Inc.)

Dividends. (a) Holders of shares of Series A Preferred Stock shall The HARRP Board, in its sole discretion, may declare a dividend to be entitled paid to cumulative dividends on the Series A Preferred Stock payable semiannuallyMembers as a class with respect to any calendar year. The dividend, which dividends if any, with respect to a calendar year shall be declared by when the HARRP Board of Directors believes that all or a duly authorized committee thereof, out substantially all of the assets of claims and losses relating to the Company legally available therefor, calendar year have been resolved and shall be payable semiannually commencing on additional claims and losses relating to the 180th day following the Issue Date (calendar year are barred or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date)substantially unlikely. The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable determined by the HARRP Board, in respect its sole discretion. The dividend shall be allocated among the Members of record in the ratio that the Net Financial Contribution of each share of Series A Preferred Stock for such period in an amount equal Member entitled to the greater dividend for the calendar year for which the dividend is declared bears to the total Net Financial Contribution of (i) all Members entitled to the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with dividend for the foregoing paragraph and (ii) calendar year for which the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertibledeclared. For purposes of this Section 3(a)Agreement, a dividend period the “Net Financial Contribution” of each Member, with respect to a Dividend Payment Date the calendar year for which the dividend is declared, shall be equal to the period commencing on the preceding Dividend Payment Date (orpositive amount, if there is no preceding Dividend Payment Dateany, by which the Member’s written Contribution for the calendar year exceeds the Member’s Paid Losses for the calendar year. Notwithstanding the foregoing, in the event the foregoing allocation of dividends shall not be in accordance with HARRP’s exemption from Federal income taxation, the Issue DateHARRP Board may allocate the dividend among the Members in a fair and equitable manner, determined in the discretion of the HARRP Board, which shall be in accordance with HARRP’s exemption from Federal income taxation. The HARRP Board shall fix a record date for the dividend in accordance with the Bylaws. Any reasonable determination by the HARRP Board in accordance with this Section 9.1 with respect to the allocation of any dividend among the Members shall be conclusive and binding upon the Members. At the option of each Member, the dividend may be received in cash or credited against future Contributions payable by the Member. Members who have terminated under Section 4.5 or have been expelled under Section 4.6 shall not be entitled to receive a dividend relating to a calendar year (or portion thereof) and ending on during which the day immediately terminated or expelled Member was a Member of HARRP if the effective date of termination or expulsion is prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on date for the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legenddividend.

Appears in 1 contract

Samples: Intergovernmental Cooperation Agreement

Dividends. (a) Holders The holders of the then outstanding shares of Series A B Preferred Stock shall will be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, receive out of the assets funds of the Company legally available therefortherefore, cumulative dividends accruing on a daily basis from the Original Issuance Date (as hereinafter defined) through and shall be including the date on which such dividends are paid at the annual rate of 10% (the "Applicable Rate") of the Liquidation Preference (as hereinafter defined) per share of the Series B Preferred Stock, payable semiannually on each March 31, June 30, September 30 and December 31, commencing on the 180th day following the Issue Date September 30, 2002 (or the following Business Day each such date, a "Dividend Payment Date") and calculated in accordance with Section 3(d); provided that: (i) if any such payment date Dividend Payment Date is not a Business Day) (each Day then such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to on the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph next Business Day, and (ii) the product of (A) the aggregate accumulated and unpaid dividends payable per share of Common Stock in such dividend for any prior quarterly period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertiblemay be paid at any time. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date Such dividends shall be payable to Holders cumulative whether or not earned or declared and whether or not there are profits, surplus or other funds of record on the close Company legally available for the payment of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (eachdividends. The term "Original Issuance Date" means June 27, a “Dividend Record Date”)2002. Notwithstanding anything The dividends provided for in this Section 3(a) are hereinafter referred to as "Dividends." Dividends shall be payable, at the option of the Company, either (i) in cash, (ii) by issuance of additional shares of Series B Preferred Stock (including fractional shares) having an aggregate Liquidation Preference equal to the contraryamount of the dividend to be paid, or (iii) any combination thereof. All dividends paid with respect to shares of Series B Preferred Stock, whether in cash or shares of Series B Preferred Stock, pursuant to this Section 3 shall be made pro rata among the holders thereof based upon the aggregate accrued but unpaid dividends on the shares held by each such holder. If and without limiting when any other remedy available to shares are issued under this Section 3(a) for the Company payment of accrued dividends, such shares shall be validly issued and outstanding and fully paid and nonassessable. For all purposes hereunder, dividends on the Series B Preferred Stock shall be treated as if the same were paid on the relevant Dividend Payment Date, whether or any other partynot the same were in fact so paid or declared. In the case of shares of Series B Preferred Stock issued as a dividend on shares of Series B Preferred Stock, dividends shall not accrue or and be payable cumulative from the Dividend Payment Date in respect of which such shares initially issued any Holder who is contractually obligated were scheduled to appear and vote in favor of any proposal made at be paid pursuant to this Section 3(a) as a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legenddividend.

Appears in 1 contract

Samples: Stock Purchase Agreement (Panavision Inc)

Dividends. (a) Holders of shares of Series A Preferred Stock shall be entitled to 5.1 From and after the Original Issue Date, cumulative dividends (“Dividends”) on each Convertible Preferred Share shall accrue whether or not there are funds legally available for the payment of dividends, on a daily basis at the rate of 6% per annum on the Series A Preferred Stock payable semiannuallysum of (i) the Original Issue Price thereof plus, which dividends shall be (ii) any Compounded Dividends thereon (the Original Issue Price plus accumulated Compounded Dividends, the “Accumulated Stated Value”). 5.2 If, as and when declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company funds legally available therefortherefor to the maximum extent not prohibited by Cayman Islands law, and Dividends shall be payable semiannually commencing paid in cash quarterly in arrears on the 180th day following the Issue Date February 15, May 15, August 15 and November 15 of each year (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as each, a “Dividend Payment Date”) at the rate per annum of 6% per share ), commencing on the Liquidation Preference; [________];1 provided thatthat if any such Dividend Payment Date would otherwise occur on a day that is not a Business Day, in the event that on such Dividend Payment Date shall instead be (and any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date shall instead be payable on) the immediately succeeding Business Day. Each Dividend period (a “Dividend Period”) shall commence on and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding include a Dividend Payment Date (other than the initial Dividend Period, which shall commence on which and include the Company is not prohibited from declaring, paying Original Issue Date) and incurring shall end on and include the liability calendar day next preceding the next Dividend Payment Date. Dividends payable in respect of such Deferred a Dividend (and, for the avoidance of doubt, such Deferred Dividend Period shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable arrears on such succeeding the first Dividend Payment Date)Date after such Dividend Period. The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will Dividends shall be computed on the basis of a 360-day year consisting of twelve 30thirty-day months. Commencing The amount of Dividends accrued or payable on any date prior to the end of a Dividend Period, and following for the Meeting End Dateinitial Dividend Period, shall be computed on the basis of a 360-day year consisting of twelve thirty-day months, and actual days elapsed over a thirty-day month. 5.3 Dividends shall begin to accrue from the Original Issue Date and, if not declared and paid, shall be cumulative. All Dividends that the Company does not elect to declare and pay in cash shall compound quarterly on the applicable Dividend Payment Date and shall be added to the then current Accumulated Stated Value (“Compounded Dividends”). No Dividend may be declared by the Board in respect of the Convertible Preferred Shares unless paid immediately in cash. For the avoidance of doubt, Xxxxxxxxx shall accumulate whether or not in any Dividend Period there have been funds of the Company legally available for the payment of such Dividends. 5.4 If the Company declares and pays in cash any Dividends, the Company shall declare and pay in cash such Dividends on the same pro rata portion of each holder’s Convertible Preferred Shares. 5.5 The Company will deliver prior to the record date for each Dividend Payment Date written notice to each record holder of Convertible Preferred Shares of the amount of the Dividend that the Company intends to pay in cash, and if the Company does not elect to pay the applicable Dividend in full in cash, such written notice will include the Accumulated Stated Value immediately before and immediately after giving effect to any cash payment of such Dividend and any Compounded Dividend as of such Dividend Payment Date and a certification that all Requisite Approvals required in connection with each holder’s acquisition of Ordinary Shares upon conversion of the Convertible Preferred Shares (giving effect to such Compounded Dividend) have been obtained. Notwithstanding anything to the contrary in the event that dividends are paid on shares of Common Stock in any dividend period foregoing, to the extent Compounded Dividends with respect to the Series A Preferred Stock, then a dividend shall be payable any Dividend Payment Date would result in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock Ordinary Shares into which the Convertible Preferred Shares would be converted to be in excess of the Ordinary Share Issuance Limitation for any or all holders of Convertible Preferred Shares, then, to the extent of such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a)excess, a dividend period with respect to a the Company shall declare the applicable Dividend and make the Dividend payment on such Dividend Payment Date is in cash. 1 To be the period commencing on first such date after the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Original Issue Date) and ending on the day immediately prior to the next . 5.6 Each Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders the holders of record on of Convertible Preferred Shares as they appear in the register of members of the Company at the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable applicable record date in respect of shares initially issued such Dividend, which shall be the February 1, May 1, August 1 and November 1 or such other record date fixed by the Board that does not precede the date upon which the resolution fixing such date is adopted and is not more than 60 days prior to such Dividend Payment Date, as applicable, immediately preceding the applicable Dividend Payment Date. If any Holder who Convertible Preferred Share is contractually obligated converted after the close of business on the record date for a Dividend declared and payable in cash but prior to appear and vote in favor the corresponding Dividend Payment Date, the holder of any proposal made at a meeting of stockholders such share as of the Company in order applicable record date shall be entitled to effect receive such Dividend, notwithstanding the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued conversion prior to such Holders shall bear the Stockholder Approval LegendDividend Payment Date.

Appears in 1 contract

Samples: Securities Purchase Agreement (SMART Global Holdings, Inc.)

Dividends. (a) Holders of shares of Series A Preferred Except as otherwise provided herein, dividends paid in any Trust Year in cash on Company Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared held by the Board of Directors or a duly authorized committee thereofTrust (including dividends paid on Released Shares, as defined below, that have not been transferred out of the assets Trust at the time of such dividend payment) shall be applied, immediately upon receipt thereof by the Trustee, (i) first to interest accrued and unpaid as of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if date of any such payment date is and then, to the extent that any such payment exceeds such accrued and unpaid interest, (ii) to prepay interest that accrues after such payment through the end of such Trust Year, and then, (iii) to pay principal installments due within such Trust Year, and then, (iv) to the extent not a Business Day) (each such date being referred otherwise distributed in accordance with the next sentence, to herein as a “Dividend Payment Date”) at the rate per annum additional installments of 6% per share on the Liquidation Preference; provided that, principal in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter order of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date)their scheduled maturity. The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in In the event that dividends are paid on shares Company Stock held in the Trust, other than Extraordinary Dividends, exceed the amount of Common Stock scheduled principal and interest due in any dividend period with respect to Trust Year, such excess shall, as determined in good faith by the Series A Preferred StockCommittee, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) applied to prepay, in whole or in part, principal (and accrued interest thereon to the amount otherwise payable in respect date of such share prepayment) of Series A Preferred Stock in accordance with the foregoing paragraph and Loan or (ii) distributed to the product Plans and/or to any other broad cross section of individuals employed by the Company. Extraordinary Dividends shall not be used to pay interest on or principal of the Loan, but shall be invested in additional Company Stock as soon as practicable, except as provided below. Dividends which are not in cash or in Company Stock (Aincluding Extraordinary Dividends, or portions thereof) shall be reduced to cash by the aggregate dividends payable per share of Common Trustee and reinvested in Company Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertibleas soon as practicable, except as provided below. For purposes of this Agreement, Company Stock purchased with the proceeds of an Extraordinary Dividend or with the proceeds of a non-cash dividend shall, for purposes of this Agreement (including, without limitation, Section 3(a3.1 hereof), a dividend period be deemed to have been acquired with respect to a Dividend Payment Date is the period commencing on proceeds of the preceding Dividend Payment Date Loan. In the Trustee's discretion, investments in Company Stock may be made through open-market purchases, private transactions or (or, if there is no preceding Dividend Payment Date, with the Issue DateCompany's consent) and ending on purchases from the day immediately prior Company. The Committee may direct the Trustee as to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders timing and manner of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company such purchases in order to effect comply 11 with applicable law and to avoid, if possible, adverse effects on the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates publicly traded market price of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendCompany Stock.

Appears in 1 contract

Samples: Stock and Employee Benefit Trust Agreement (Browning Ferris Industries Inc)

Dividends. From and after the date of this Agreement until the earlier of the Merger Effective Time and termination of this Agreement pursuant to Section 8.1, neither the Company nor PECO shall authorize, make, declare or set aside any dividend or other distribution to its stockholders without the prior written consent of the Company (ain the case of PECO) Holders or PECO (in the case of the Company); provided, however, that the written consent of the other Party shall not be required for the authorization and payment by the Company of monthly dividends not in excess of an amount covered by the Company’s operating cash flow for each such month (“Company Permitted Dividend”) or by PECO of dividends in the Ordinary Course of Business (a “PECO Permitted Dividend”, and together with the Company Permitted Dividends, each a “Permitted Dividend”), as applicable. In the event that (i) a Company Permitted Dividend has (A) a record date prior to the Merger Effective Time and (B) has not been paid as of immediately prior to the Merger Effective Time (regardless of the declared date for the payment thereof), the holders of Company Shares shall be entitled to receive such distribution from the Company immediately prior to the time such shares are exchanged pursuant to Article II or (ii) a PECO Permitted Dividend has (A) a record date prior to the Merger Effective Time and (B) has not been paid as of immediately prior to the Merger Effective Time (regardless of the declared date for the payment thereof), the holders of shares of Series A Preferred PECO Common Stock shall be entitled to cumulative receive such distribution from PECO in connection with the Closing. Notwithstanding the foregoing and any other restriction on dividends on and other distributions in this Agreement, each of the Series A Preferred Stock payable semiannuallyCompany, which dividends any Company Subsidiary, PECO, and any PECO Subsidiary shall be declared by permitted (without the Board of Directors or a duly authorized committee thereof, out consent of the assets other Party) to declare and make dividends and distributions, including under Sections 858 or 860 of the Company legally available thereforCode, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders Closing if the making of record on the close of business on the day on which the Board of Directors such dividends or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) distributions prior to the contrary, and without limiting any other remedy available to Closing is necessary for the Company or any other partyPECO, dividends shall not accrue as applicable, to maintain its status as a REIT under the Code or be payable in respect of shares initially issued any Holder who is contractually obligated to appear applicable state Law and vote in favor avoid the imposition of any proposal made at a meeting of stockholders of entity level income or excise Tax under the Code or applicable state Law. If the Company in order or PECO, as applicable, determines that it is necessary to effect the Stockholder Approval declare a dividend or distribution (whether a Company Permitted Dividend, a PECO Permitted Dividend or whose transferor Holder was so obligated) if such Holder (or such transferor Holder otherwise), it shall notify PECO or the Affiliates of either) fails so to appear and vote in favor. Any shares issued Company, as applicable, as soon as reasonably practicable prior to such Holders shall bear the Stockholder Approval Legenddeclaration.

Appears in 1 contract

Samples: Merger Agreement (Phillips Edison Grocery Center REIT III, Inc.)

Dividends. (a) Holders a. Subject to the prior preferences and other rights of shares any Senior Stock, the holders of the Series A Preferred Stock shall be entitled to cumulative receive, out of funds legally available for that purpose, cash dividends in an amount equal to 6.785% per annum of the Liquidation Preference per share calculated on the Series A Preferred Stock payable semiannually, which basis of a 365-day year. Such dividends shall be declared by the Board of Directors or a duly authorized committee thereofpayable only in cash, out of the assets of the Company legally available therefor, shall be cumulative from their Issue Date and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day in arrears, when, as and if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on March 31, June 30, September 30 and December 31 of each year (each such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding date being herein referred to as a "Dividend Payment Date"), commencing on June 30, 2004. The amount of dividends payable for period between consecutive Dividend Payment Dates shall hereinafter be referred to as a "Dividend Period." b. Dividends on any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock shall accrue (whether or not declared and whether or not there shall be funds legally available for the payment of dividends) on and from their Issue Date. No interest shall be payable with respect to any dividends that are in arrears. c. Each such period in an amount equal dividend shall be paid to the greater holders of (i) record of the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with as their names appear on the foregoing paragraph and share register of the Corporation on the corresponding Record Date. As used above, the term "Record Date" for any Dividend Period means the date that is fifteen (ii15) days prior to the product Dividend Payment Date for such Dividend Period, or such other record date designated by the Board of (A) Directors of the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period Corporation with respect to a Dividend Payment Date is the period commencing dividend payable on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next such respective Dividend Payment Date. Dividends payable on a account of arrears for any past Dividend Periods may be declared and paid, together with any accrued but unpaid dividends thereon to and including the date of payment, at any time, without reference to any Dividend Payment Date shall be payable Date, to Holders holders of record on such date, not exceeding 50 days preceding the close of business on the day on which payment date thereof, as may be fixed by the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendDirectors.

Appears in 1 contract

Samples: Securities Purchase Agreement (Amcon Distributing Co)

Dividends. (a) Holders The registered holders of shares of Series A Preferred Stock 8% Convertible Preference Shares shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be when, as and if authorized or declared by the Board of Directors or a duly authorized committee thereof, out of funds legally available for that purpose, distributions in the assets form of cash dividends on each share of 8% Convertible Preference Shares, at a rate per annum equal to 8.0% of the Liquidation Preference per share of the 8% Convertible Preference Shares, payable for each Dividend Period after the Issue Date of such share of 8% Convertible Preference Shares. Such dividends with respect to each share of 8% Convertible Preference Shares shall begin to accumulate and shall be fully cumulative on a daily basis from the Issue Date of such share of 8% Convertible Preference Shares, whether or not authorized or declared by the Board of Directors and whether or not in any Dividend Period or Dividend Periods there shall be funds of the Company legally available thereforfor the payment of such dividends, and shall be payable semiannually commencing on the 180th day following the Issue Date (semi-annually in cash Dollars, when, as and if authorized or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall in arrears on Dividend Payment Dates or such other dates as provided herein, commencing on the first Dividend Payment Date after the Issue Date of such share of 8% Convertible Preference Shares. (b) At the option of the Company, dividends may be paid, instead of in cash, on declaration by the Board of Directors, by the issuance of additional fully paid whole shares of 8% Convertible Preference Shares (the Additional Shares ), to the extent authorized but unissued shares of 8% ----------------- Convertible Preference Shares are legally available therefor, in respect of any and all Dividend Payment Dates; provided that, if any dividend payable on -------- any Dividend Payment Date is not be declared or authorized and paid or in full in cash on such Dividend Payment Date, the amount payable as dividends on such Dividend Payment Date and no liability that is not paid in cash on such Dividend Payment Date shall be incurred paid in Additional Shares to the extent authorized but unissued shares of 8% Convertible Preference Shares are legally available therefor. If a dividend is to be paid in Additional Shares, the number of Additional Shares to be issued in payment of the dividend with respect to each outstanding share of 8% Convertible Preference Shares shall be determined by dividing (a) the amount of the accumulated dividend payable to each registered holder of 8% Convertible Preference Shares on the basis of all shares held of record by such holder as of the record date for such dividend, whether evidenced by one or more certificates, by (b) $70.00, with amounts in respect of any partial shares to be paid in cash by the Company, and upon payment in Additional Shares as herein provided the dividend shall be deemed paid in full and shall not accumulate. (c) Each dividend shall be payable in arrears to the holders of record of 8% Convertible Preference Shares, as they appear on the register of members of the Company at the close of business on such record dates, not more than 15 days preceding such Dividend Payment Dates thereof, and instead, such Deferred Dividend as shall be declared, become payable fixed by the Board of Directors. All dividends paid with respect to shares of 8% Convertible Preference Shares pursuant to Sections 3(a) and 3(b) shall be paid and pro rata to the liability in respect thereof be incurred holders entitled thereto. (d) Dividends on the first 8% Convertible Preference Shares that are in arrears and unpaid (in cash or Additional Shares) as of any Dividend Payment Date for any Dividend Period (a Dividend Arrearage ) will cumulate as if such ------------------ dividends had been paid in Additional Shares as provided in Section 3(b) and such Additional Shares were outstanding on each succeeding Dividend Payment Date until such accumulated semi-annual dividends shall have been declared and paid in cash or in Additional Shares by the Board of Directors. Any such declaration may be for a portion, or all, of the then accumulated dividends. In the event dividends on which the Company is 8% Convertible Preference Shares are in arrears and unpaid for three or more Dividend Periods (whether or not prohibited from declaringconsecutive), paying and incurring the liability in respect holders of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend 8% Convertible Preference Shares shall be payable entitled to certain voting rights as provided in addition tosubsection 9(c). (e) Accumulated and unpaid dividends for any past Dividend Periods may be authorized or declared and paid at any time and for such interim periods, and not in lieu of, without reference to any dividend which would ordinarily be payable on such succeeding regular Dividend Payment Date, to holders of record on such date, not more than 15 days preceding the payment date thereof, as may be fixed by the Board of Directors. Dividend payments shall be aggregated per holder and shall be made to the nearest cent (with $.005 being rounded upward). (f) The amount of dividends payable per share of 8% Convertible Preference Shares for each Dividend Period shall be computed by dividing the annual dividend amount by two. The amount of dividends payable for the initial Dividend Period, or any other period that is shorter or longer than a full semiannual dividend period will Dividend Period, on the 8% Convertible Preference Shares shall be computed on the basis of twelve 30-day months and a 360-day year consisting year. Except as expressly provided herein, holders of twelve 30-day months. Commencing on and following the Meeting End Date8% Convertible Preference Shares shall not be entitled to any dividends, whether payable in cash, property, shares or stock, in excess of cumulative dividends (including dividends that cumulate as a result of a Dividend Arrearage as provided in subsection 3(d)) as herein provided on the event 8% Convertible Preference Shares. (g) So long as any 8% Convertible Preference Shares are outstanding, no full dividends shall be authorized, declared, paid or set apart for payment on any class or series of Parity Shares or any other class or series of the Company s Capital Stock currently outstanding or hereafter issued ranking, as to dividends, on a parity with the 8% Convertible Preference Shares (the Parity Shares and any such other class or series of the Company s Capital Stock being herein referred to as Parity Dividend Shares ) unless full ---------------------- cumulative dividends on all outstanding 8% Convertible Preference Shares for all Dividend Periods terminating on or prior to the dividend payment date on such class or series of Parity Dividend Shares have been or contemporaneously are paid or declared and a sum of cash Dollars or Additional Shares sufficient for the payment thereof set apart for such payment. If full dividends are not so paid, all dividends declared upon shares of the 8% Convertible Preference Shares and any other Parity Dividend Shares shall be declared pro rata so that the amount of dividends declared per share on the 8% Convertible Preference Shares and such Parity Dividend Shares shall in all cases bear to each other the same ratio that accumulated and unpaid dividends per share on the 8% Convertible Preference Shares and such Parity Dividend Shares bear to each other. No dividends may be paid on Parity Dividend Shares except on dates on which dividends are paid on the 8% Convertible Preference Shares for any period. (h) So long as any 8% Convertible Preference Shares are outstanding, the Company shall not, directly or indirectly through any Affiliate of the Company controlled by the Company, make any payment on account of, or set apart for payment money for a sinking or other similar fund for, the redemption, purchase, retirement or other acquisition of any Parity Dividend Shares or any other class or series of the Company s Capital Stock ranking on a parity with the 8% Convertible Preference Shares as to distributions of assets upon liquidation, dissolution or winding up of the Company, whether voluntary or involuntary (the Parity Shares and any such other class or series of the Company s Capital Stock being herein referred to as Parity Liquidation ------------------ Shares ), and, other than dividends to the extent permitted by subsection ------ 3(g), no distributions shall be declared, paid or set apart for payment on shares of Common Parity Dividend Shares or Parity Liquidation Shares, unless full cumulative dividends on all outstanding 8% Convertible Preference Shares for all Dividend Periods ending on or before such payment for or setting apart for payment on account of, or the payment date of such distributions on, such Parity Dividend Shares or Parity Liquidation Shares have been or contemporaneously are paid or declared and a sum of cash Dollars or Additional Shares sufficient for the payment therefor set apart for payment. (i) So long as any 8% Convertible Preference Shares are outstanding, no dividends shall be authorized, declared, paid or set apart for payment or other distribution authorized or made upon Junior Shares or any other Capital Stock in of the Company ranking junior as to dividends to the 8% Convertible Preference Shares (the Junior Shares and any such other class or series of the Company s Capital Stock being herein referred to as Junior Dividend Shares ), ---------------------- unless full cumulative dividends on the 8% Convertible Preference Shares for all Dividend Periods ending on or before the dividend payment date of such dividends on Junior Dividend Shares have been or contemporaneously are paid or declared and a sum of cash Dollars or Additional Shares sufficient for the payment therefor set apart for payment. (j) So long as any 8% Convertible Preference Shares are outstanding, the Company shall not, directly or indirectly through any Affiliate of the Company controlled by the Company, make any payment on account of, or set apart for payment money for a sinking or other similar fund for, the redemption, purchase, retirement or other acquisition of any Junior Dividend Shares or any other class or series of the Company s Capital Stock ranking junior to the 8% Convertible Preference Shares as to distributions of assets upon liquidation, dissolution or winding up of the Company, whether voluntary or involuntary (the Junior Dividend Shares and any such other class or series of the Company s Capital Stock ranking junior to the 8% Convertible Preference Shares as to such distributions being herein referred to as Junior ------ Liquidation Shares ) unless (i) full cumulative dividends on all outstanding ------------------- 8% Convertible Preference Shares and any other Parity Dividend Shares shall have been or contemporaneously are paid or declared and a sum of cash Dollars or Additional Shares sufficient for the payment thereof set apart for payment for all Dividend Periods with respect to the 8% Convertible Preference Shares terminating on or before such payment for, or the setting apart for payment on account of, such class or series of Junior Liquidation Shares and all dividend periods with respect to such Parity Dividend Shares terminating on or before such payment for, or the setting apart for payment on account of, such class or series of Junior Liquidation Shares and (ii) cash Dollars or Additional Shares sufficient for the payment of the dividend for the current Dividend Period with respect to the 8% Convertible Preference Shares and the current dividend period with respect to such Parity Dividend Shares shall have been paid or set apart for the Series A Preferred Stockpayment thereof; provided, then a dividend however, that the -------- ------- restrictions set forth in this subsection 3(j) shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal not apply to the greater purchase or other acquisition of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of Junior Liquidation Shares either (A) the aggregate dividends payable per share pursuant to any employee or director incentive or benefit plan or arrangement of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders Subsidiary of the Company heretofore or hereafter adopted or (B) in order exchange solely for Junior Shares. (k) Any reference to effect distribution contained in this Section 3 shall not be deemed to include any distribution made in connection with any liquidation, dissolution or winding up of the Stockholder Approval (Company, whether voluntary or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendinvoluntary.

Appears in 1 contract

Samples: Stock Purchase Agreement (Triton Energy LTD)

Dividends. (a) Holders of shares The holders of Series A B First Preferred Stock Shares shall be entitled to receive a quarterly fixed cumulative dividends on dividend in an amount equal to the Series A Preferred Stock payable semiannuallyapplicable Dividend Rate (as defined herein) then in effect (the “Dividends”). (b) Subject to applicable law, which dividends Dividends shall be declared by the Board and payable quarterly in arrears on January 1, April 1, July 1 and October 1 of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date each year (or the following Business Day if unless any such payment date day is not a Business Day) , in which event such Dividends shall be payable on the next succeeding Business Day, without accrual to the actual payment date), commencing on [January 1, 2015]1 (each such payment date being referred to herein as a “Dividend Payment Date”) at ,” and the rate per annum period from the Issue Date of 6% per share on the Liquidation Preference; provided that, in Series B First Preferred Shares to the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such first Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, each such Deferred quarterly period thereafter being a “Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment DatePeriod”). The amount of dividends Dividends payable on the Series B First Preferred Shares for any other period that is shorter or longer than a full semiannual dividend period will shall be computed on the basis of a 360-day year consisting and the actual number of twelve 30-day monthsdays elapsed. Commencing on and following the Meeting End DateSubject to Section 6(b)(7)(B) herein, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend such Dividends shall be payable in respect of each share paid to holders of Series A B First Preferred Stock Shares before any dividends shall be declared, set apart for such period in an amount equal or paid upon any Junior Shares. 1 Note to Draft: First payment date after Issue Date. (c) Dividends, whether or not declared, shall begin to accrue and be cumulative from the greater of (i) Issue Date and shall compound at the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing relevant rate on the preceding each subsequent Dividend Payment Date (ori.e., if there is no preceding Dividends shall accrue on another Dividend unless and until any Dividend Payment Date for such other Dividends has passed without such other Dividends having been paid on such date, in which case Dividends will accrue on such unpaid Dividends). If the Corporation does not pay any Dividend in full in cash on any scheduled Dividend Payment Date, such Dividends will accrue at the Issue Datethen applicable Dividend Rate plus an additional two and one half percent (2.5%) and ending per annum of the Redemption Value of each Series B First Preferred Share from such scheduled Dividend Payment Date to the date that all accumulated Dividends on the day immediately prior Series B First Preferred Shares have been paid in cash in full. Any Dividends accrued and not paid in cash pursuant to the next Dividend Payment Date. Dividends payable this Section 4(c) on a each Dividend Payment Date shall be added to the Redemption Value until such Dividends are paid in cash in full. For the avoidance of doubt, Dividends shall accumulate whether or not in any Dividend Period there have been funds of the Corporation legally available for the payment of such Dividends. (d) Except as otherwise provided herein, if at any time the Corporation pays less than the total amount of Dividends then accumulated in cash, such cash dividend payment shall be distributed pro rata among the holders of Series B First Preferred Shares based upon the Redemption Value on the Series B First Preferred Shares then held by each such holder. When Dividends are not paid in full in cash, all Dividends paid in cash and any dividends paid in cash on Series A First Preferred Shares shall be paid pro rata so that the amount of Dividends paid in cash and any dividends on Series A First Preferred Shares paid in cash shall in all cases bear to each other the same ratio as accumulated Dividends and accumulated dividends on Series A First Preferred Shares bear to each other. (e) All Dividends shall be paid in cash or accrued in accordance with Section 4(c). (f) Dividends shall be payable to Holders the holders of record of Series B First Preferred Shares as they appear on the close register of business the Corporation at the Close of Business on the day on relevant record date, which shall be not more than thirty (30) days nor less than ten (10) days preceding the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “applicable Dividend Record Payment Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.

Appears in 1 contract

Samples: Merger Agreement (Cott Corp /Cn/)

Dividends. (a) The Holders of shares of Series A Preferred Stock MRP Shares shall be entitled to receive quarterly cumulative dividends on the Series A Preferred Stock payable semiannuallycash dividends, which dividends shall be declared when, as and if authorized by the Board of Directors or a duly authorized committee thereofand declared by the Company, out of the assets of the Company funds legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share equal to the Applicable Rate (or the Default Rate), and no more, payable on the Liquidation Preference; provided thatrespective dates determined as set forth in paragraph (b) of this Section 2. Dividends on Outstanding MRP Shares shall accumulate from the Original Issue Date. (i) Dividends shall be payable quarterly when, in as and if authorized by the event that Board of Directors and declared by the Company beginning on any the initial Dividend Payment Date, on MRP Shares, and with respect to any Dividend Period thereafter on the first (1st) Business Day following each Quarterly Dividend Date. (ii) Except as otherwise set forth herein, the Company is not permitted shall pay an aggregate amount of federal funds or similar same-day funds, equal to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not dividends to be paid or payable to all Holders of such shares on such Dividend Payment Date and no liability in accordance with Section 14 of the Securities Purchase Agreement. The Company shall not be required to establish any reserves for the payment of dividends. (iii) Each dividend on MRP Shares shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date therefor to the Holders as their names appear on which the share ledger or share records of the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on at the close of business on the fifth (5th) day prior to the Quarterly Dividend Date (or if such day is not a Business Day, the next preceding Business Day). Dividends in arrears for any past Dividend Period may be declared and paid at any time, without reference to any regular Dividend Payment Date, to the Holders as their names appear on which the share ledger or share records of the Company at the close of business on a date, not exceeding 5 days preceding the payment date thereof, as may be fixed by the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”)Directors. Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or No interest will be payable in respect of shares initially issued any Holder who dividend payment or payments which may be in arrears. (i) So long as the MRP Shares are rated on any date no less than “A” by Fitch (and no less than an equivalent of such ratings by some Other Rating Agency), the dividend rate on such Outstanding MRP Shares (the “Dividend Rate”) shall be the Applicable Rate. If the lowest credit rating assigned on any date to the MRP Shares by Fitch or any Other Rating Agency is contractually obligated equal to appear and vote one of the ratings set forth in favor the table below (or its equivalent by some Other Rating Agency), the Dividend Rate for the MRP Shares shall be adjusted by adding the respective enhanced dividend amount (which shall not be cumulative) set opposite such rating (or the equivalent rating from any Other Rating Agency) to the Applicable Rate. FITCH ENHANCED DIVIDEND AMOUNT “A-” 0.5 % “BBB+” to “BBB-” 2.0 % “BB+” or below 4.0 % The Company shall, at all times, use its reasonable best efforts to cause at least one NRSRO to maintain a current rating on the MRP Shares. If, notwithstanding the foregoing requirements of this Section 2(c)(i), no Rating Agency is rating the Outstanding MRP Shares, the Dividend Rate (so long as no such rating exists) on the Outstanding MRP Shares shall be equal to the Applicable Rate plus 4.0% unless the Dividend Rate is the Default Rate, in which case the Dividend Rate shall remain the Default Rate. (ii) Subject to the cure provisions below, a “Default Period” will commence on any Dividend Payment Date or any date on which the Company would be required to redeem any MRP Shares regardless of whether any of the conditions of the Special Proviso in Section 3(a)(iv) were applicable, if the Company either fails to pay directly in accordance with Section 14 of the Securities Purchase Agreement or, in the case of clause (B) below, fails to deposit irrevocably in trust in federal funds or similar funds, with the Paying Agent by 1:00 pm, New York City time, (A) the full amount of any proposal dividend payable on the Dividend Payment Date (a “Dividend Default”) or (B) the full amount of any redemption price payable with respect to any redemption required hereunder regardless of whether any of the conditions of the Special Proviso exists (the “Redemption Date”) (a “Redemption Default,” and together with a Dividend Default, is hereinafter referred to as “Default”). Subject to the cure provisions of Section 2(c)(iii) below, a Default Period with respect to a Dividend Default or a Redemption Default shall end on the Business Day on which, by 12:00 noon, New York City time, all unpaid dividends and any unpaid redemption price shall have been directly paid in accordance with Section 14 of the Securities Purchase Agreement. In the case of a Default, the Dividend Rate for each day during the Default Period will be equal to the Default Rate. (iii) No Default Period with respect to a Dividend Default or Redemption Default (if such default is not solely due to the willful failure of the Company) shall be deemed to commence if the amount of any dividend or any redemption price due is paid in accordance with Section 14 of the Securities Purchase Agreement within three Business Days (the “Default Rate Cure Period”) after the applicable Dividend Payment Date or Redemption Date, together with an amount equal to the Default Rate applied to the amount of such non-payment based on the actual number of days within the Default Rate Cure Period divided by 360. (iv) The amount of dividends per share payable on each Dividend Payment Date of each Dividend Period shall be computed by multiplying the Applicable Rate (or the Default Rate) for such Dividend Period by a fraction, the numerator of which shall be 90 and the denominator of which shall be 360, multiplying the amount so obtained by the liquidation preference per MRP Share, and rounding the amount so obtained to the nearest cent. Dividends payable on any MRP Shares for any period of less than a full quarterly Dividend Period, including in connection with the first Dividend Period or upon any redemption of such shares on any date other than on a Dividend Payment Date, shall be computed by multiplying the Applicable Rate (or the Default Rate) for such period by a fraction, the numerator of which shall be the actual number of days in such period and the denominator of which shall be 360, multiplying the amount so obtained by the liquidation preference per MRP Share, and rounding the amount so obtained to the nearest cent. (d) Any dividend payment made at on MRP Shares shall first be credited against the earliest accumulated but unpaid dividends due with respect to such MRP Shares. (e) For so long as the MRP Shares are Outstanding, except as contemplated herein, the Company will not declare, pay or set apart for payment any dividend or other distribution (other than a meeting dividend or distribution paid in shares of, or options, warrants or rights to subscribe for or purchase, Common Shares or other shares of stockholders capital stock, if any, ranking junior to the MRP Shares as to dividends or upon liquidation) with respect to Common Shares or any other shares of the Company ranking junior to or on a parity with the MRP Shares as to dividends or upon liquidation, or call for redemption, redeem, purchase or otherwise acquire for consideration any Common Shares or any other such junior shares (except by conversion into or exchange for shares of the Company ranking junior to the MRP Shares as to dividends and upon liquidation) or any such parity shares (except by conversion into or exchange for shares of the Company ranking junior to or on a parity with the MRP Shares as to dividends and upon liquidation), unless (1) immediately after such transaction the MRP Shares Asset Coverage would be achieved and the Company would satisfy the MRP Shares Basic Maintenance Amount, (2) full cumulative dividends on the MRP Shares due on or prior to the date of the transaction have been declared and paid, and (3) the Company has redeemed the full number of MRP Shares required to be redeemed by any provision for mandatory redemption contained in order Section 3(a) (without regard to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or provisions of the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendSpecial Proviso).

Appears in 1 contract

Samples: Securities Purchase Agreement (Kayne Anderson MLP Investment CO)

Dividends. (a) Holders Subject to the prior preferences and other rights of shares any Senior Stock, the holders of the Series A C Preferred Stock shall be entitled to cumulative receive, out of funds legally available for that purpose, cash dividends in an amount equal to 6% per annum of the Liquidation Preference per share calculated on the Series A Preferred Stock payable semiannually, which basis of a 365-day year. Such dividends shall be payable only in cash, shall be cumulative from the Issue Date and shall be payable in arrears, when, as and if declared by the Board of Directors or a duly authorized committee thereofDirectors, out on March 31, June 30, September 30 and December 31 of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) each year (each such date being herein referred to herein as a “Dividend Payment Date”), commencing on March 31, 2006 The period between consecutive Dividend Payment Dates shall hereinafter be referred to as a “Dividend Period.” For purposes hereof, the rights of holders of the Series C Preferred Stock to payment of such dividends shall rank pari passu with any other shares of Parity Stock then outstanding. (b) at Dividends on any shares of Series C Preferred Stock shall accrue (whether or not declared and whether or not there shall be funds legally available for the rate per annum payment of 6% per share dividends) on and from the Issue Date. No interest shall be payable with respect to any dividends that are in arrears. (c) Each such dividend shall be paid to the holders of record of the Series C Preferred Stock as their names appear on the Liquidation Preference; provided thatshare register of the Corporation on the corresponding Record Date. As used above, in the event term “Record Date” for any Dividend Period means the date that is fifteen (15) days prior to the Dividend Payment Date for such Dividend Period, or such other record date designated by the Board of Directors of the Corporation with respect to the dividend payable on such respective Dividend Payment Date. Dividends on account of arrears for any past Dividend Periods may be declared and paid, together with any accrued but unpaid dividends thereon to and including the date of payment, at any time, without reference to any Dividend Payment Date, to holders of record on such date, not exceeding 50 days preceding the Company is not permitted to declare or pay such dividend or incur such liability either (x) payment date thereof, as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not may be declared fixed by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.

Appears in 1 contract

Samples: Securities Purchase Agreement (Draupnir LLC)

Dividends. (a) Holders The holders of record of shares of Series A Preferred Stock as of the Close of Business on the last Business Day of December, March, June and September in each year, in preference to the holders of shares of any class or series of stock of the Corporation ranking junior to the Series A Preferred Stock, shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be when, as and if declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company funds legally available thereforfor the purpose, and shall be quarterly dividends payable semiannually commencing in cash on the 180th day following the Issue Date fifteenth (or the following Business Day if any such payment date is not a Business Day15th) of January, April, July and October in each year (each such date being referred to herein as a “Dividend Payment Date”) ), commencing on the first Dividend Payment Date after the first issuance of a share or fraction of a share of Series A Preferred Stock, at the annual rate per annum of 64.25% on the per share on the Liquidation Preference; provided that, in the event that on Issue Price. If any Dividend Payment Date, the Company Date is not permitted a Business Day, then the payment will be made on the next Business Day without any adjustment to declare or pay such dividend or incur such liability either the amount of dividends paid. (xb) as a matter The amount of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or dividends payable on such Dividend Payment Date and no liability shall each share of Series A Preferred Stock for each full quarterly period will be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and computed by dividing the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend annual dividend by four (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date4). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period quarterly Dividend Period will be computed on the basis of a 360-day three hundred sixty (360)-day year consisting of twelve 30(12) thirty (30)-day months. (c) Dividends shall begin to accrue and be cumulative on outstanding shares of Series A Preferred Stock from the date of issue of such shares of Series A Preferred Stock. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares of Series A Preferred Stock 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-day monthsby-share basis among all such shares at the time outstanding. (d) So long as any share of Series A Preferred Stock remains outstanding, no dividends shall be declared or paid or set apart for payment on the shares of any Junior Stock for any Dividend Period unless full cumulative dividends have been or contemporaneously are declared and paid on the Series A Preferred Stock through the most recent Dividend Payment Date. Commencing on and following the Meeting End Date, in the event that If full cumulative dividends are have not been paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect all dividends declared on shares of each share of the Series A Preferred Stock for such period in an amount equal shall be paid pro rata to the greater holders of (i) outstanding shares of the amount otherwise payable in respect of such share of Series A Preferred Stock Stock. Subject to the foregoing, and not otherwise, such dividends (payable in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(acash, stock or otherwise), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall as may be payable to Holders of record on the close of business on the day on which determined by the Board of Directors or a duly authorized committee thereof declares the dividend payable (eachthereof, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) may be declared and paid on any Junior Stock from time to the contrarytime out of any funds legally available therefor, and without limiting the shares of Series A Preferred Stock shall not be entitled to participate in any other remedy available to such dividend. (e) Unless all accrued and unpaid dividends on the Company Series A Preferred Stock for all prior Dividend Periods have been paid, the Corporation may not redeem, purchase or otherwise acquire any Junior Stock or any other party, of the Corporation’s capital stock that ranks pari passu with the Series A Preferred Stock as to payment of dividends or the distribution of assets upon any Liquidation Event. (f) The limitations in paragraph 4(h)(3)(d) or paragraph 4(h)(3)(e) shall not accrue apply to: (i) redemptions, purchases or be payable other acquisitions of Junior Stock in respect of shares initially issued connection with any Holder who is contractually obligated to appear benefit plan or other similar arrangement with and vote in favor solely for the benefit of any proposal made at one or more employees, officers, directors or consultants or in connection with a meeting dividend reinvestment or shareholder stock purchase plan; (ii) conversion into or exchanges for other Junior Stock and cash solely in lieu of stockholders fractional shares of the Company Junior Stock; (iii) any declaration of a dividend in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder connection with any shareholder rights plan, or the Affiliates issuance of eitherrights, shares or other property under any shareholder rights plan, or the redemption or repurchase of rights pursuant to any shareholders rights plan; or (iv) fails so dividends or distributions paid in shares of, or options, warrants or rights to appear and vote in favor. Any subscribe for or purchase shares issued to such Holders shall bear of, Common Stock or other Junior Stock of the Stockholder Approval LegendCorporation.

Appears in 1 contract

Samples: Framework Agreement (Corning Inc /Ny)

Dividends. (a) Holders The holders of shares of Series A C Preferred Stock shall not be entitled to cumulative receive dividends on the Series A C Preferred Stock payable semiannuallyStock. (b) From and after the time, which if any, that the Corporation fails to pay to the holder of any shares of Series C Preferred Stock, on the date specified for redemption in accordance with Section 5, Section 6 or Section 7 hereof or on the date specified for repurchase in accordance with Section 10, the redemption price calculated pursuant to Section 5, the Change of Control Price (as defined below) or the Material Asset Sale Price (as defined below) after such holder has delivered notice to the Corporation pursuant Section 10 of its intention to exercise its repurchase rights under Section 10, if applicable, then (i) no dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (paid or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guarantyset apart for payment, or related agreementother distribution declared or made, such dividend upon any Junior Securities, nor shall any Junior Securities be redeemed, purchased or otherwise acquired (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis redemption, purchase or other acquisition of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock expressly required and made for purposes of any employee incentive or benefit plans or arrangements of the Corporation or any subsidiary of the Corporation or the payment of cash in lieu of fractional shares in connection therewith) for any dividend period with respect consideration (nor shall any moneys be paid to or made available for a sinking fund for the Series A Preferred Stockredemption of any shares of any such Junior Securities) by the Corporation, then a dividend shall be payable directly or indirectly (except by conversion into or exchange for Junior Securities or the payment of cash in respect lieu of each share of Series A Preferred Stock for such period fractional shares in an amount equal to the greater of (iconnection therewith) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product Corporation shall not, directly or indirectly, make any payment on account of any purchase, redemption, retirement or other acquisition of any Parity Securities (other than for consideration payable solely in Junior Securities or the payment of cash in lieu of fractional shares in connection therewith); provided, however, that this Section 3(b) shall not be applicable at any time that (A) the aggregate dividends Corporation has irrevocably paid, in accordance with Section 5 or Section 7, the entire redemption price payable per share to each holder of Common Stock in such dividend period times Series C Preferred Stock, (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Corporation has irrevocably paid, in accordance with Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date6, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be Change of Control Price payable to Holders of record on each holder or (C) the close of business on Corporation has irrevocably paid, in accordance with Section 10, the day on which the Board of Directors or a duly authorized committee thereof declares the dividend Material Asset Sale Price payable (each, a “Dividend Record Date”). Notwithstanding anything in this to each holder that has exercised its repurchase right pursuant to Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend10.

Appears in 1 contract

Samples: Securities Purchase Agreement (Proxim Corp)

Dividends. (a) Holders of shares of Series A Preferred Stock shall be entitled 10.1 Unless it has insufficient distributable reserves to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Datedo so, the Company shall, if the GSK Shareholder directs the Company to do so, declare and pay a special dividend to the GSK Shareholder in an amount that is not permitted equal to declare or pay such dividend or incur such liability either any proceeds received (xwithout duplication of Section 2.8 of the SAPA) as a matter by any member of law or the Company’s Group (y) under the terms net of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”Tax suffered thereon) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend the sale pursuant to the Horlicks SPA (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, including any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect proceeds received pursuant to the Series A Preferred Stock, then a Amended Consignment Selling Agreement) within five Business Days of the completion of such sale. Any such special dividend shall be payable in priority to any other dividend payable by the Company or any amount outstanding (in respect of interest, principal or otherwise) under any Shareholder Loan(s). To the extent that the Company has insufficient distributable reserves to pay all or some of a special dividend within the five Business Day time period, any unpaid amount shall be payable as a dividend in priority to any other dividend payable by the Company or any amount outstanding (in respect of interest, principal or otherwise) under any Shareholder Loan(s). 10.2 Subject to clauses 10.1 and 10.3, in respect of each share of Series Quarterly Accounting Period (beginning with the first Quarterly Accounting Period included within the first full Half-Yearly Accounting Period falling after Completion), the Company shall distribute to the Shareholders, in proportion to their respective Percentage Interests as at the relevant record date and as a dividend on the A Preferred Stock for such period in Shares and the B Shares, not less than an amount that is equal to the greater aggregate amount of Readily Available Cash held by the Company’s Group specified in the relevant Quarterly Accounts as is in excess of the Base Cash Amount. The parties acknowledge and agree that in priority to any dividend paid on the A Shares and the B Shares pursuant to this clause 10.2 a dividend of 0.01 per cent. of the aggregate amount that would otherwise have been payable to the Shareholders pursuant to this clause 10.2 shall first be paid to the holder(s) of Preference Shares. For the avoidance of doubt, the Board may resolve to pay dividends on the A Shares and the B Shares in excess of the amount provided by this clause 10.2 (isubject always to clauses 10.3 and 12.1). 10.3 The Company shall only be required to declare and/or pay dividend(s) in accordance with clause 10.2 to the extent that: (A) it has sufficient distributable reserves, and (without limiting the Shareholders’ and the Company’s obligations hereunder) the amount otherwise payable Board resolves, to do so; and (B) there are no amounts outstanding (in respect of interest, principal or otherwise) under any Shareholder Loan(s); and (C) there are no outstanding special dividends in respect of payment obligations pursuant to clause 10.1 which have been declared or become payable. 10.4 Dividends in respect of any Quarterly Accounting Period shall be declared and paid, unless otherwise agreed between the parties, no later than the later of: (A) two months following the end of such share Quarterly Accounting Period; and (B) the first Business Day that is at least ten days after the first Board meeting that is held following the production of Series A Preferred Stock the unaudited quarterly report of the Company’s Group by the Executive Management in respect of that Quarterly Accounting Period. 10.5 Except where dividends are to be paid in a currency other than Sterling in accordance with the foregoing paragraph and (ii) terms of the product SAPA, dividends shall be paid in Sterling. All dividends in respect of (A) any Quarterly Accounting Period shall be paid to all the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing Shareholders on the preceding Dividend Payment Date same day and by way of inter-bank transfer or by other electronic means for same day value directly to an account with a bank or other financial institution (or, if there is no preceding Dividend Payment Dateor other organisations operating deposit accounts) as notified in writing by the relevant Shareholder to the Company. In the absence of any such notification, the Issue Date) Company shall hold the amount of the relevant dividend on trust for the relevant Shareholder. 10.6 The Shareholders and ending the Company shall cooperate and take such steps as are reasonably required in connection with distributable reserves planning for the Company and its Group. 10.7 The Company shall instruct its auditors to report on the day immediately prior to distributable reserves position of the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record Company at the same time as they sign their report on the close of business on Accounts. 10.8 The Company shall, so far as it is legally able to do so, procure that (and the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (eachShareholders shall, a “Dividend Record Date”). Notwithstanding anything so far as they are legally able to do so, exercise their rights in this Section 3(a) to the contrary, and without limiting any other remedy available relation to the Company and under this agreement to procure that) all resolutions for the declaration or any payment of dividends or other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders payments consistent with this clause 10 are duly passed by the relevant members of the Company Company’s Group and the Board (as applicable). 10.9 For the avoidance of doubt, nothing in order to effect this clause 10 shall prevent or restrict the Stockholder Approval (payment of the distribution contemplated by clause 17.32 in connection with a Pre-Separation Recapitalisation or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or shall limit the Affiliates of either) fails so to appear Shareholders’ respective rights and vote in favor. Any shares issued to such Holders shall bear obligations under the Stockholder Approval LegendStructuring Considerations Agreement.

Appears in 1 contract

Samples: Shareholders’ Agreement (Glaxosmithkline PLC)

Dividends. (ai) Beginning on the Issue Date, each Holder shall be entitled to receive, when, as and if declared by the Board of Directors, out of funds legally available therefor, distributions in the form of dividends on each whole or fractional share of Series A Preferred Stock, at a rate per annum equal to ten and seven-eighths percent (10 7/8%) of the Liquidation Preference per share of the Series A Preferred Stock, payable quarterly. All dividends with respect to each whole or fractional share of Series A Preferred Stock shall be cumulative, whether or not earned or declared, on a daily basis from the Issue Date with respect to such whole or fractional share, and shall be payable quarterly in arrears on each Dividend Payment Date, commencing on the first Dividend Payment Date after the Issue Date with respect to such whole or fractional share; provided that if any dividend payable on any Dividend Payment Date on or before the fifth anniversary of the Initial Preferred Stock Issue Date is not declared and paid in full in cash on such Dividend Payment Date, the amount payable as dividends on such Dividend Payment Date that is not paid in cash on such Dividend Payment Date shall be paid by the Company on such date by the issuance of additional fully paid and non-assessable shares (including fractional shares, if applicable, or, at the Company's option, cash in lieu of such fractional shares) of Series A Preferred Stock having an aggregate Liquidation Preference equal to the amount of such dividends (rounded to the nearest whole cent). The payment by the Company in such additional shares of Series A Preferred Stock shall constitute full payment of such dividend. Dividends payable on any Dividend Payment Date after the fifth anniversary of the Preferred Stock Issue Date shall be paid only in cash. If any dividend (or portion thereof) payable on any Dividend Payment Date after the fifth anniversary of the Initial Preferred Stock Issue Date is not declared or paid in full in cash on such Dividend Payment Date, the amount of such dividend that is payable and that is not paid in cash on such date shall accrue interest at the annual dividend rate plus 5% until declared and paid in full, compounded quarterly. Each distribution in the form of a dividend shall be payable to the Holders of Series A Preferred Stock of record as they appear on the stock books of the Company on such record dates, not less than 10 nor more than 45 days preceding the related Dividend Payment Date, as shall be fixed by the Board of Directors. Dividends shall cease to accumulate in respect of shares of the Series A Preferred Stock on the Exchange Date or on the date of their earlier redemption unless the Company shall have failed to issue the appropriate aggregate principal amount of Exchange Notes in respect of the Series A Preferred Stock on the Exchange Date or shall have failed to pay the relevant redemption price on the date fixed for redemption. (ii) All dividends paid with respect to shares of the Series A Preferred Stock pursuant to paragraph (c)(i) shall be paid pro rata to the Holders thereof entitled thereto. (iii) Dividends on account of arrears for any past Dividend Period may be declared and paid at any time, without reference to any regular Dividend Payment Date, together with all accrued and unpaid interest thereon, to Holders of Series A Preferred Stock of record on such date, not more than 45 days prior to the payment thereof, as may be fixed by the Board of Directors. (iv) Holders of shares of the Series A Preferred Stock shall be entitled to cumulative receive the dividends on provided for in paragraph (c)(i) hereof in preference to and in priority over any dividends upon any of the Junior Securities. (v) Holders of shares of the Series A Preferred Stock payable semiannually, which dividends shall be declared by entitled to receive the Board of Directors or dividends provided for in paragraph (c)(i) hereof on a duly authorized committee thereof, out pro rata basis with respect to any dividends upon any Parity Securities. (vi) Dividends payable on shares of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable Series A Preferred Stock for any other period that is shorter or longer less than a full semiannual dividend period will year shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in If any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date occurs on a day that is the period commencing on the preceding Dividend Payment Date (ornot a Business Day, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends any accrued dividends otherwise payable on a such Dividend Payment Date shall be payable to Holders of record paid on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendnext succeeding Business Day.

Appears in 1 contract

Samples: Preferred Stock and Warrant Purchase Agreement (Leslies Poolmart)

Dividends. (a) Holders Each share of shares of Series A 9% Convertible Preferred Stock shall entitle the holder of record thereof to receive cumulative cash dividends at the annual rate of $3.33 per share. Dividends shall accrue daily and accrued dividends for any period of less than one year shall be entitled to cumulative dividends computed on the Series A Preferred Stock basis of the number of days elapsed out of a 365-day or 366-day year, as the case may be. Dividends shall be payable semiannuallyeach year on the last day of June (the "Dividend Payment Date") in the amount accrued to such Dividend Payment Date; provided, which however, that dividends shall be required to be paid only (i) to the extent the Corporation may lawfully do so and (ii) if the Board of Directors has determined, in its sole discretion, that dividends should be paid by the Corporation; and provided further, if the Corporation may not lawfully pay all the dividends it is required to pay under this Section 1(a) on any Dividend Payment Date, it shall pay on such date all the dividends it may lawfully pay ratably among the holders of 9% Convertible Preferred Stock and, at the earliest time or times thereafter when it may lawfully pay any or all of the balance of such dividends, it shall do so. If the Corporation does not pay dividends on any Dividend Payment Date because the Board of Directors has not approved such payment, it shall pay such dividends at a later time when it may lawfully do so and following approval of such payment by the Board of Directors. Dividends on each share of 9% Convertible Preferred Stock shall commence to accrue and shall be cumulative from expiration of the Conversion Period (as defined in Section 4 below), whether or not they are earned, declared, or lawfully payable. If any dividend which is required to be paid on any Dividend Payment Date is not paid for any reason, such unpaid dividend shall not bear any interest. (b) Once the dividends provided for in Section 1(a) above have been paid, each share of Common Stock and 9% Convertible Preferred Stock shall entitle the holder of record thereof to receive dividends at the rate to be determined by the Board of Directors, out of funds legally available therefor, when and as declared by the Board of Directors with respect to such classes of stock; provided, however, that no dividend or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and other distribution shall be payable semiannually commencing on the 180th day following the Issue Date (declared or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any unless an equivalent dividend period with respect to or distribution on the Series A outstanding shares of 9% Convertible Preferred StockStock shall have been paid or declared and a sum sufficient for the payment thereof set apart. For purposes of the declaration or payment of dividends or other distributions, then a dividend or distribution on shares of 9% Convertible Preferred Stock shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal deemed "equivalent" to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share a dividend or distribution on shares of Common Stock in such if the dividend period times (B) or distribution declared or paid on each outstanding share of 9% Convertible Preferred Stock entitles the holder thereof to the same money or other property to which the holder would have been entitled if the holder held the number of shares of Common Stock into which such share of Series A 9% Convertible Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (convertible or, if there the Conversion Period is no preceding Dividend Payment Datenot then in effect, would have been convertible if the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything Conversion Period was then in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendeffect.

Appears in 1 contract

Samples: Preferred Stock Purchase Agreement (Barnett Howard G Jr)

Dividends. (a) Holders of shares of the Series A E Preferred Stock shall be are entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be declared when and as authorized by the Board of Directors or a duly authorized committee thereofand declared by the Company, out of funds legally available for the assets payment of dividends, preferential cumulative cash dividends at the rate (any such rate determined in accordance with this Section 5(a), the “Dividend Yield”) of 8.50% per annum of the Liquidation Preference (the “Initial Dividend Yield”); provided, however, that (i) if the Company legally available thereforshould violate the Fixed Charge Coverage Ratio Covenant (as defined in Section 10), the Capitalization Ratio Covenant (as defined in Section 10), or the Unencumbered Asset Test (as defined in Section 10) and fail to cure such violation on or prior to the second succeeding Dividend Payment Date after the date of any such violation, or (ii) if the Company fails to have declared effective and maintain the effectiveness of the Demand Registration within the respective periods required under the Registration Rights Agreement, the Dividend Yield shall be increased to 200 basis points over the Initial Dividend Yield (the “First Default Dividend Yield”) as of such second succeeding Dividend Payment Date after the date of such violation or failure. If the Company remains in violation of the Fixed Charge Ratio Covenant, the Capitalization Ratio Covenant or the Unencumbered Asset Test on four consecutive Dividend Payment Dates subsequent to the initial violation of any such covenant, the Dividend Yield shall increase to the greater of (i) the Discount Rate plus 700 basis points or (ii) 15% (the “Second Default Dividend Yield”) as of such fourth consecutive Dividend Payment Date. The Dividend Yield on the Series E Preferred Stock will revert back to the Initial Dividend Yield if (i) the Company remains in compliance with the Fixed Charge Coverage Ratio Covenant, the Capitalization Ratio Covenant, and the Unencumbered Asset Test on two consecutive Dividend Payment Dates after such First Default Dividend Yield or Second Default Dividend Yield takes effect or (ii) the Company has declared effective and maintains the effectiveness of the Demand Registration if the First Default Dividend Yield is due to the Company’s failure to have declared effective and maintain the effectiveness of the Demand Registration within the respective periods required under the Registration Agreement. (b) Dividends on the Series E Preferred Stock shall be cumulative from the date of original issue and shall be payable semiannually commencing in arrears for each quarterly period ended January 31, April 30, July 31 and October 31 on the 180th day following the Issue Date (or the following Business Day January 31, April 30, July 31 and October 31, respectively, of each year, or, if any such payment date is shall not be a Business Day) business day, the next succeeding business day (each such date being referred to herein as each, a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such ). The first dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily will be payable on such succeeding Dividend Payment Date). The amount April 30, 2008, with respect to the period commencing on the date of dividends payable first issue and ending April 30, 2008, and will be for any other period that is shorter or longer less than a full semiannual quarterly period. Any quarterly dividend payable on the Series E Preferred Stock for any partial dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall will be payable to Holders holders of record on as they appear in the stock records of the Company at the close of business on the day on which applicable record date determined each quarter by the Board of Directors or a duly authorized committee thereof declares Directors, in accordance with the dividend payable Maryland General Corporation Law (the “MGCL”) (each, a “Dividend Record Date”). (c) No dividends on shares of Series E Preferred Stock shall be authorized by the Board of Directors or declared or paid or set aside for payment by the Company at such time as the terms and provisions of any agreement of the Company, including any agreement relating to its indebtedness, prohibits such authorization, declaration, payment or setting apart for payment or provides that such authorization, declaration, payment or setting apart for payment would constitute a breach thereof or a default thereunder, or if such authorization, declaration, payment or setting apart for payment shall be restricted or prohibited by law. (d) Notwithstanding the foregoing, dividends on outstanding shares of the Series E Preferred Stock will accrue whether or not the Company has earnings, whether or not there are funds legally available for the payment of such dividends and whether or not such dividends are authorized or declared. Notwithstanding anything Accrued but unpaid dividends on the Series E Preferred Stock will not bear interest and holders of the shares of the Series E Preferred Stock will not be entitled to any distributions in this Section 3(a) excess of full cumulative distributions described above. Except as set forth in the next sentence, no dividends will be authorized, declared and paid or authorized, declared and set aside for payment on any capital stock of the Company, including any other series of Preferred Stock ranking, as to dividends, on a parity with or junior to the contrarySeries E Preferred Stock, and without limiting (other than a dividend in shares of the Company’s Common Stock or in shares of any other remedy available class of stock ranking junior to the Series E Preferred Stock as to dividends and upon liquidation) for any period unless full cumulative dividends relating to all past dividend periods and the then current dividend period have been or contemporaneously are authorized, declared and paid or authorized and declared and a sum sufficient for the payment of such dividends relating to all past dividend periods and the then current dividend period is irrevocably set aside by the Company for the benefit of holders of outstanding shares of Series E Preferred Stock. When cumulative dividends are not paid in full (or a sum sufficient for such full payment is not so set aside by the Company) upon the Series E Preferred Stock and the shares of any other series of Preferred Stock ranking on a parity as to dividends with the Series E Preferred Stock, all dividends declared upon the Series E Preferred Stock and any other series of Preferred Stock ranking on a parity as to dividends with the Series E Preferred Stock shall be declared and paid pro rata so that the amount of dividends declared and paid per share of Series E Preferred Stock and such other series of Preferred Stock shall in all cases bear to each other the same ratio that accrued dividends per share on the Series E Preferred Stock and such other series of Preferred Stock (which shall not include any accrual in respect of unpaid dividends for prior dividend periods if such Preferred Stock does not have a cumulative dividend) bear to each other. (e) Except as provided in the immediately preceding paragraph (d), unless full cumulative dividends on the Series E Preferred Stock have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof is irrevocably set aside for payment for all past dividend periods and the then current dividend period, no dividends (other than in shares of Common Stock or other shares of capital stock ranking junior to the Series E Preferred Stock as to dividends and upon liquidation) shall be declared and paid or declared and set aside for payment nor shall any other distribution be declared or made upon the Common Stock, or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders capital stock of the Company in order ranking junior to effect or on a parity with the Stockholder Approval Series E Preferred Stock as to dividends or upon liquidation, nor shall any shares of Common Stock, or any other shares of capital stock of the Company ranking junior to or on a parity with the Series E Preferred Stock as to dividends or upon liquidation be redeemed, purchased or otherwise acquired for any consideration (or whose transferor Holder was so obligatedany moneys be paid to or made available for a sinking fund for the redemption of any such shares) if such Holder by the Company (except (i) by conversion into or such transferor Holder exchange for other capital stock of the Company ranking junior to the Series E Preferred Stock as to dividends and upon liquidation or (ii) any redemption that is necessary to preserve the Affiliates Company’s qualification as a real estate investment trust (a “REIT”) under the Internal Revenue Code of either) fails so 1986, as amended (the “Code”)). Holders of shares of the Series E Preferred Stock shall not be entitled to appear and vote any dividend, whether payable in favorcash, property or stock, in excess of full cumulative dividends on the Series E Preferred Stock as provided above. Any dividend payment made on shares issued of the Series E Preferred Stock shall first be credited against the earliest accrued but unpaid dividend due with respect to such Holders shall bear the Stockholder Approval Legendshares which remains payable.

Appears in 1 contract

Samples: Investment Agreement (Urstadt Biddle Properties Inc)

Dividends. (a) Holders Dividends shall accrue and accumulate on each Share (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Shares) on a daily basis at the Dividend Rate on the Accrued Value from and including the Issue Date of such Share to and including the first date on which any of the following occurs: (i) payment is made in respect to such Share in connection with a Liquidation Event pursuant to Section 5, (ii) such Share is redeemed by the Corporation in accordance with Section 6, or (iii) such Share is converted into shares of Series A Preferred Conversion Stock pursuant to Section 7. Dividends on Shares shall compound quarterly on each Dividend Compounding Date. Dividends on Shares shall accrue, accumulate, and compound whether or not they have been declared, whether or not there are profits, surplus or other funds of the Corporation legally available for the payment of dividends, and whether or not a cash payment of such dividends would be entitled prohibited under any Loan Documents. In any given quarter, to cumulative the extent that (x) the Corporation is legally permitted to pay dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by in cash and (y) an independent committee of the Board of Directors (which for the avoidance of doubt shall exclude any directors employed within the last three years by investment funds affiliated with H.I.G. Capital, LLC) has determined that payment of such dividends in cash is in the best interest of stockholders (taking into account the impact that payment of such dividends in cash or a duly authorized committee thereofthe ability to make such cash payment of such dividends, out would have on the treatment of the assets Shares as debt or equity by the credit agencies rating the Company, its Subsidiaries, Indebtedness of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or its Subsidiaries or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided thatShares), in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of DirectorsDirectors may, shall not be paid or payable on such Dividend Payment Date in its sole discretion, declare a cash dividend in an amount up to 50% of the amount of the dividends that have accrued and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred accumulated on the first succeeding Dividend Payment Date on which Shares through the Company is not prohibited from declaring, paying and incurring the liability in respect end of such Deferred Dividend (quarter, and, if the Board of Directors so declares, the Corporation shall pay such cash dividend on the Dividend Compounding Date for such quarter to the holders of record of the Shares as they appear on the Company’s stock register at the Close of Business on the relevant Dividend Record Date. For the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The the amount of dividends payable for any other period that is shorter or longer than a full semiannual quarterly dividend period will be computed on Shares paid in cash to the holders of Shares on the basis of a 360-day year consisting of twelve 30-day monthsDividend Compounding Date pursuant to the immediately preceding sentence shall not compound on the Dividend Compounding Date and shall not be included in Accrued Value. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with With respect to any Share, its Issue Date shall remain the Series A Preferred Stock, then a dividend shall be payable in respect same regardless of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares times transfer of Common Stock into which such share of Series A Preferred Stock Share is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing made on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, stock records maintained by or for the Issue Date) Corporation and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders regardless of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates number of either) fails so to appear and vote in favor. Any shares certificates which may be issued to evidence such Holders shall bear the Stockholder Approval LegendShare.

Appears in 1 contract

Samples: Securities Purchase Agreement (Surgery Partners, Inc.)

Dividends. (a) Holders From and after the date of issuance of each share of Preferred Stock (the “Initial Issuance Date”), each holder of shares of Series A Preferred Stock shall be entitled to cumulative receive dividends on the Series A Preferred Stock payable semiannually(“Dividends”), which dividends Dividends shall be declared paid by the Board of Directors or a duly authorized committee thereof, Company out of the assets of the Company funds legally available therefor, payable, subject to the conditions and other terms hereof, in PIK Shares or cash, by wire transfer of immediately available funds, on the Stated Value of such shares of Preferred Stock at the Dividend Rate, which shall be cumulative and shall continue to accrue and compound annually whether or not declared and whether or not in any fiscal year there shall be payable semiannually commencing net profits or surplus available for the payment of dividends in such fiscal year. Dividends on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum shares of 6% per share Preferred Stock shall commence accumulating on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Initial Issuance Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360365-day year consisting of twelve 30-day monthsand actual days elapsed. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend Dividends shall be payable quarterly in respect arrears on the first day of each share of Series A Preferred Stock for such period in an amount equal to the greater of next applicable quarter (ieach, a “Quarterly Dividend Date”) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertiblefirst Quarterly Dividend Date being January 1, 2015. For purposes of this Section 3(a), a dividend period with respect to If a Dividend Payment Date is not a Business Day, then the period commencing Dividend shall be due and payable on the preceding Business Day immediately following such Dividend Payment Date Date. (or, if there is no preceding Dividend Payment Date, the Issue Dateb) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on each Quarterly Dividend Date, Mandatory Conversion Date, and the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable Redemption Date (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) , to the contraryrecord holders of the shares of Preferred Stock on the applicable Dividend Date, and without limiting any other remedy available to the Company or any other party, dividends Dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made cash or, at a meeting of stockholders the election of the Company (the “PIK Election”) the Company may, so long as the PIK Conditions are fulfilled, pay Dividends in order part or full by delivery of additional shares of Preferred Stock (“PIK Shares”). The Company shall deliver a written notice to effect each Holder on the Stockholder Approval Dividend Notice Due Date which notice (1) either (A) confirms that Dividends to be paid on such Dividend Date shall be paid entirely in PIK Shares or whose transferor (B) elects to pay Dividends as cash or a combination of cash and PIK Shares and specifies the amount of Dividends that shall be paid as cash and the amount of Dividends, if any, that shall be paid in PIK Shares and (2) certifies that as of the Dividend Date, the PIK Conditions will be satisfied, if any portion of the Dividends shall be paid in PIK Shares. Dividends to be paid to each Holder was so obligatedon a Dividend Date in PIK Shares shall be paid in a number of fully paid and non-assessable shares (rounded to the nearest whole share) if of Preferred Stock equal to the amount of Dividends payable to such Holder (or on such transferor Holder or Dividend Date, less any cash Dividends paid, divided by the Affiliates Stated Value. The Company shall pay any and all taxes that may be payable with respect to the issuance and delivery of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendPIK Shares.

Appears in 1 contract

Samples: Securities Purchase Agreement (Bridgeline Digital, Inc.)

Dividends. (a) Holders During the Interim Period, neither REIT I nor REIT II shall make, declare or set aside any dividend or other distribution to its respective stockholders without the prior written consent of the other Party; provided, however, that the written consent of the other Party shall not be required for the authorization and payment of quarterly distributions in the ordinary course of business 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 REIT I Common Stock and shares of REIT II Common Stock, respectively (each, a “Quarterly Dividend”); it being agreed that the timing of any such Quarterly Dividends will be coordinated so that, if either the holders of shares of Series A Preferred REIT I Common Stock or the holders of shares of REIT II Common Stock receives a distribution for a particular quarter prior to the Closing Date, then the holders of shares of REIT II Common Stock and the holders of shares of REIT I Common Stock, respectively, shall receive a distribution for such quarter prior to the Closing Date; provided, further that the record and payment dates for REIT I and REIT II’s Quarterly Dividends pursuant to this Section 7.8 shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallysame as the other Party’s record and payment dates, which dividends shall be declared by consistent with REIT I’s historical record dates and payment dates unless otherwise agreed between the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided thatParties, in order to ensure that the stockholders of REIT I and the stockholders of REIT II receive the same number of such dividends prior to the REIT Merger Effective Time. (b) In the event that on any Dividend Payment Date, the Company Closing Date is not permitted expected to declare or pay such dividend or incur such liability either (x) as a matter occur prior to the end of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual then-current dividend period will be computed on of REIT I or REIT II, as the basis case may be, then each of REIT I and REIT II shall declare and pay a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number holders of shares of REIT I Common Stock into which such share and the holders of Series A Preferred Stock is then convertible. For purposes shares of this Section 3(aREIT II Common Stock, respectively (each, a “Closing Dividend”), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date record date and payment date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date extent practicable) for which shall be payable to Holders of record on the close of business on the last Business Day prior to the Closing Date (the “Closing Dividend Date”), in each case, subject to funds being legally available therefor. The per share amount of the Closing Dividend payable by REIT I with respect to the shares of REIT I Common Stock shall be an amount equal to (A) REIT I’s Quarterly Dividend, multiplied by (B) a fraction, the numerator of which is the number of days lapsed from the first day of the then-current dividend period through and including the Closing Dividend Date, and the denominator of which is the actual number of days in the calendar quarter in which such dividend is declared. The per share amount of the Closing Dividend payable by REIT II with respect to the shares of REIT II Common Stock shall be an amount equal to (A) REIT II’s Quarterly Dividend, multiplied by (B) a fraction, the numerator of which is the number of days lapsed from the first day of the then-current dividend period through and including the Closing Dividend Date, and the denominator of which is the actual number of days in the calendar quarter in which such dividend is declared. (c) Notwithstanding the foregoing or anything else to the contrary in this Agreement, each of REIT I and REIT II, as applicable, shall be permitted to declare and pay a dividend to its stockholders, the record date and payment date for which shall be the close of business on which the Board last Business Day prior to the Closing Date, distributing any amounts determined by such Party (in each case in consultation with the other party) to be the minimum distributions including under Sections 858 or 860 of Directors the Code, reasonably necessary for such Party to maintain its status as a REIT under the Code and avoid or a duly authorized committee thereof declares reduce the imposition of any entity-level income or excise Tax under the Code (any dividend payable (eachpaid pursuant to this paragraph, a “Dividend Record DateREIT Dividend”). Notwithstanding anything If either REIT I or REIT II determines that it is necessary to declare a REIT Dividend, it shall notify the other Party at least twenty (20) days prior to the expected Closing Date, and such other Party shall be entitled to declare a dividend per share payable (i) in the case of REIT I, to holders of REIT I Common Stock, in an amount per share of REIT I Common Stock equal to the product by multiplying (x) the REIT Dividend declared by REIT II with respect to each share of REIT II Common Stock by (y) the Exchange Ratio and (ii) in the case of REIT II, to holders of shares of REIT II Common Stock, in an amount per share of REIT II Common Stock equal to the quotient by dividing (x) the REIT Dividend declared by REIT I with respect to each share of REIT I Common Stock by (y) the Exchange Ratio. The record date and payment date for any REIT Dividend payable pursuant to this Section 3(a7.8(c) shall be the close of business on the last Business Day prior to the contraryClosing Date. (d) REIT I Operating Partnership or REIT II Operating Partnership, and without limiting any other remedy available as the case may be, may make a distribution with respect to the Company REIT I OP Units or any other partythe REIT II OP Units, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company respectively, in order to effect distribute funds sufficient for the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendforegoing dividends.

Appears in 1 contract

Samples: Merger Agreement (Carey Watermark Investors 2 Inc)

Dividends. (a) Holders of shares of Series A Preferred Stock shall be entitled to cumulative dividends on the Series A receive, with respect to each share of Preferred Stock payable semiannually, which dividends shall be declared by prior to any distributions made in respect of any Junior Stock in respect of the Board of Directors or a duly authorized committee thereofsame fiscal quarter, out of the assets of the Company funds legally available thereforfor payment, and shall be payable semiannually commencing on the 180th day following the Issue Date cash dividends (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a Dividend Payment DateCash Dividends”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, Preference in effect immediately after the event that on any Dividend Payment Datelast day of the immediately prior fiscal quarter (or if there has been no prior full fiscal quarter, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Issue Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be , computed on the basis of a 360-day year consisting of twelve 30-day months, at the Dividend Rate, compounded quarterly on each Dividend Payment Date. Commencing To the extent the Board of Directors so declares, Cash Dividends shall be payable in arrears on each Dividend Payment Date for the fiscal quarter ending immediately prior to such Dividend Payment Date (or with respect to the first Dividend Payment Date, for the period commencing on the Issue Date and ending on the last day of the fiscal quarter following the Meeting End Issue Date), to the Holders as they appear on the Company’s stock register at the close of business on the relevant Dividend Record Date. Dividends on the Preferred Stock shall accumulate and become Accrued Dividends on a day-to-day basis from the last day of the most recent fiscal quarter, or if there has been no prior full fiscal quarter, from the Issue Date, until Cash Dividends are paid pursuant to this Section 3(a) in respect of such accumulated amounts or the Liquidation Preference is increased in respect of such accumulated amounts pursuant to Section 3(b). (b) Notwithstanding anything to the contrary in Section 3(a), the Company may, at the sole election of the Board of Directors, with respect to any dividend declared in respect of any fiscal quarter ending on or prior to December 31, 2017, elect (a “Non-Cash Dividend Election”) to have the amount that would have been payable if such dividend had been a cash dividend payable in cash (the “Non-Cash Dividend Amount”) to be added to the Liquidation Preference in lieu of paying such dividend in cash. If the Company makes a Non-Cash Dividend Election pursuant to this Section 3(b), then contemporaneous with increasing the Liquidation Preference by the applicable Non-Cash Dividend Amount, the Company will grant and deliver to the Holders additional Warrants having the same terms (including exercise price) as the Warrants issued under the Warrant Agreement on the Issue Date as follows: (i) Series A Warrants (as defined in the event that dividends are paid on Warrant Agreement) entitling the holder thereof to purchase a number of shares of Common Stock equal to (x) the quotient of (I) the applicable Non-Cash Dividend Amount divided by (II) 1,000, multiplied by (y) 14.04 (subject to the same adjustments pursuant to the terms of the Warrant Agreement that the Warrants issued on the Issue Date have been subject) and (ii) Series B Warrants (as defined in the Warrant Agreement) entitling the holders thereof to purchase a number of shares of Common Stock equal to (x) the quotient of (I) the applicable Non-Cash Dividend Amount divided by (II) 1,000, multiplied (y) 6.77 (subject to the same adjustments pursuant to the terms of the Warrant Agreement that the Warrants issued on the Issue Date have been subject), in each case rounded up to the nearest whole share of Common Stock. If the Company fails to pay a Cash Dividend in respect of any dividend fiscal quarter ending on or prior to December 31, 2017 and does not make a Non-Cash Dividend Election in respect thereof, the Company shall be deemed to have made a Non-Cash Dividend Election for all purposes of this Certificate of Designations. (c) Notwithstanding anything to the contrary herein, if any shares of Preferred Stock are converted into Common Stock in accordance with this Certificate of Designations on a date during the period between the close of business on any Dividend Record Date and the close of business on the corresponding Dividend Payment Date, the Accrued Dividends with respect to the Series A such shares of Preferred Stock, then at the Company’s option, shall either (x) be paid in cash on or prior to the date of such conversion or (y) not be paid in cash, be deemed to be Accumulated Dividends and be added to the Liquidation Preference for purposes of such conversion. For the avoidance of doubt, such Accrued Dividends shall include dividends accruing from, and including, the last day of the most recently preceding fiscal quarter to, but not including, the applicable Conversion Date. The Holders at the close of business on a Dividend Record Date shall be entitled to receive any dividend paid as a Cash Dividend on those shares on the corresponding Dividend Payment Date. (d) Notwithstanding anything to the contrary herein, if any shares of Preferred Stock are redeemed by the Company in accordance with this Certificate of Designations on a date during the period between the close of business on any Dividend Record Date and the close of business on the corresponding Dividend Payment Date, the Accrued Dividends with respect to such shares of Preferred Stock shall be deemed to be Accumulated Dividends and shall be added to the Liquidation Preference for purposes of such redemption. For the avoidance of doubt, such Accrued Dividends shall include dividends accruing from, and including, the last day of the most recently preceding fiscal quarter to, but not including, the Optional Redemption Date or the Change of Control Redemption Date, as applicable. The Holders at the close of business on a Dividend Record Date shall be entitled to receive any dividend paid as a Cash Dividend on those shares on the corresponding Dividend Payment Date. (e) So long as any share of the Preferred Stock remains outstanding, no dividend or distribution shall be declared or paid on, and no redemption or repurchase shall be agreed to or consummated of, Parity Stock, Common Stock or any other shares of Junior Stock, unless all accumulated and unpaid dividends for all preceding full fiscal quarters (including the fiscal quarter in which such accumulated and unpaid dividends first arose) of the Company have been declared and paid; provided, however, that the foregoing limitation shall not apply to (i) a dividend payable on Common Stock or other Junior Stock in shares of Common Stock or other Junior Stock, (ii) the acquisition of shares of Common Stock or other Junior Stock in exchange for shares of Common Stock or other Junior Stock and the payment of cash in lieu of fractional shares of Common Stock or other Junior Stock; (iii) purchases of fractional interests in shares of Common Stock or other Junior Stock pursuant to the conversion or exchange provisions of shares of other Junior Stock or any securities exchangeable for or convertible into such shares of Common Stock or other Junior Stock; (iv) redemptions, purchases or other acquisitions of shares of Common Stock or other Junior Stock in connection with the administration of any employee benefit plan in the ordinary course of business, including, without limitation, the forfeiture of unvested shares of restricted stock or share withholdings upon exercise, delivery or vesting of equity awards granted to officers, directors and employees and the payment of cash in lieu of fractional shares of Common Stock or other Junior Stock; (v) any dividends or distributions of rights in connection with a stockholders’ rights plan or any redemption or repurchase of rights pursuant to any stockholders’ rights plan; and (vi) the exchange or conversion of Junior Stock for or into other Junior Stock and the payment of cash in lieu of fractional shares of other Junior Stock; provided further, however, that the foregoing limitation in the first clause of this Section 3(e) shall not apply to the extent all such accumulated and unpaid dividends have been deemed to be Accumulated Dividends and have been added to the Liquidation Preference in accordance with Sections 3(b), 3(c) and 3(d). Notwithstanding the preceding, 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 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 other Parity Stock bear to each other. (f) For the avoidance of doubt, the only requirement of the Company to deliver additional Warrants to the Holders under this Certificate of Designations shall be payable as expressly provided in respect Section 3(b). Any other addition of each share Accumulated Dividends to the Liquidation Preference (including pursuant to Sections 3(c) and 3(d)) shall not result in the issuance of Series A Preferred Stock for such period additional Warrants. (g) Except as provided in Section 3(b), if the Company fails to pay in full in cash to the Holders a Cash Dividend in an amount equal to the greater product of the Liquidation Preference multiplied by the Dividend Rate for a fiscal quarter, then (i) the amount otherwise payable in respect of such share of Series A Preferred Stock shortfall will continue to be owed by the Company to the Holders and will accumulate until paid in accordance with the foregoing paragraph and full in cash, (ii) the product of Liquidation Preference will be deemed increased by such amount until paid in full in cash and (Aiii) contemporaneous with increasing the aggregate dividends payable per share of Common Stock Liquidation Preference by such shortfall, the Company will grant and deliver to the Holders additional Warrants having the same terms (including exercise price) as the Warrants issued under the Warrant Agreement on the Issue Date as follows: (i) Series A Warrants (as defined in such dividend period times (Bthe Warrant Agreement) entitling the holder thereof to purchase a number of shares of Common Stock into which such equal to (x) the quotient of (I) the shortfall amount divided by (II) 1,000, multiplied by (y) 14.04 (subject to the same adjustments pursuant to the terms of the Warrant Agreement that the Warrants issued on the Issue Date have been subject) and (ii) Series B Warrants (as defined in the Warrant Agreement) entitling the holders thereof to purchase a number of shares of Common Stock equal to (x) the quotient of (I) the shortfall amount divided by (II) 1,000, multiplied (y) 6.77 (subject to the same adjustments pursuant to the terms of the Warrant Agreement that the Warrants issued on the Issue Date have been subject), in each case rounded up to the nearest whole share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendCommon Stock.

Appears in 1 contract

Samples: Purchase Agreement (Targa Resources Corp.)

Dividends. (ai) Holders The holders of shares of Series A Senior Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be declared by the Board of Directors or a duly authorized committee thereofwhen, out of the assets of the Company legally available therefor, as and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect out of such Deferred Dividend (and, funds legally available for the avoidance payment of doubtdividends, such Deferred Dividend shall be payable in addition to, dividends (subject to Sections 3(a)(ii) and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount (iii) hereof) at a rate equal to the greater of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be (x) 13% per annum (computed on the basis of a 360-360 day year consisting year) or (y) the stated rate of twelve 30-day months. Commencing interest per annum payable on the Senior Subordinated Notes due 2008 of Thermadyne Inc. plus 300 basis points (the "Dividend Rate") on the Liquidation Value of each share of Senior Preferred Stock on and as of the most recent Dividend Payment Date (as defined below). In the event the Corporation is unable or shall fail to discharge its obligation to redeem all outstanding shares of Senior Preferred Stock pursuant to paragraph 5(c) or 5(d) hereof, the Dividend Rate shall increase by .25 percent per quarter (each, a "Default Dividend") for each quarter or portion thereof following the Meeting End date on which such redemption was required to be made until cured, provided that the aggregate increase shall not exceed 5%. Such dividends shall be payable in the manner set forth below in Sections 3(a)(ii) and (iii) quarterly on March 31, June 30, September 30, and December 31 of each year (unless such day is not a business day, in which event on the next succeeding business day) (each of such dates being a "Dividend Payment Date" and each such quarterly period being a "Dividend Period"). Such dividends shall be cumulative from the date of issue, whether or not in any Dividend Period or Periods there shall be funds of the Corporation legally available for the payment of such dividends. (ii) Prior to the fifth anniversary of the issuance of the Senior Preferred Stock (the "Cash Pay Date"), dividends shall not be payable in cash to holders of shares of Senior Preferred Stock but shall, subject to Section 3(b) hereof, accrete to the Liquidation Value in accordance with Section 4(a) hereof. (iii) Following the Cash Pay Date, each such dividend shall be payable in cash on the event that Liquidation Value per share of the Senior Preferred Stock, in equal quarterly amounts (to which the Default Dividend, if any, shall be added), to the holders of record of shares of the Senior Preferred Stock, as they appear on the stock records of the Corporation at the close of business on such record dates, not more than 60 days or less than 10 days preceding the payment dates thereof, as shall be fixed by the Board of Directors. Accrued and unpaid dividends are for any past Dividend Periods may be declared and paid at any time, without reference to any Dividend Payment Date, to holders of record on such date, not more than 45 days preceding the payment date thereof, as may be fixed by the Board of Directors. (b) At the written request of the holders of a majority of the shares of Senior Preferred Stock, the Corporation shall, commencing on the first Dividend Payment Date after such request and ending on the Cash Pay Date, be required to pay all dividends on shares of Common Senior Preferred Stock in any dividend period with respect by the issuance of additional shares of Senior Preferred Stock ("Additional Shares"). The Additional Shares shall be identical to the Series A all other shares of Senior Preferred Stock, then a dividend except as set forth in Section 4. For the purposes of determining the number of Additional Shares to be issued as dividends pursuant to this Paragraph (b), such Additional Shares shall be valued at their Applicable Liquidation Value as provided in Section 4(c). (c) Holders of shares of Senior Preferred Stock shall not be entitled to any dividends, whether payable in cash, property or stock, in excess of the cumulative dividends, as herein provided, on the Senior Preferred Stock. Except as provided in this Section 3, no interest, or sum of money in lieu of interest, shall be payable in respect of each share any dividend payment or payments on the Senior Preferred Stock that may be in arrears. (d) So long as any shares of Series A the Senior Preferred Stock are outstanding, no dividends, except as described in the next succeeding sentence, shall be declared or paid or set apart for payment on Parity Securities, for any period unless (to the extent such dividends are payable in cash) full cumulative dividends have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for such payment on the Senior Preferred Stock for such period in an amount equal all Dividend Periods terminating on or prior to the greater date of payment of the dividend on such class or series of Parity Securities. When (i) to the amount otherwise extent such dividends are payable in respect cash) dividends are not paid in full or a sum sufficient for such payment is not set apart, as aforesaid, all dividends declared upon shares of such share of Series A the Senior Preferred Stock and all dividends declared upon any other class or series of Parity Securities shall (in accordance with each case, to the foregoing paragraph extent payable in cash) be declared ratably in proportion to the respective amounts of dividends accumulated and unpaid on the Senior Preferred Stock and accumulated and unpaid on such Parity Securities. (iie) So long as any shares of the product of Senior Preferred Stock are outstanding, no dividends (Aother than dividends or distributions paid in shares of, or options, warrants or rights to subscribe for or purchase shares of, Junior Securities) the aggregate dividends payable per share of Common Stock in such dividend period times shall be declared or paid or set apart for payment or other distribution declared or made upon Junior Securities, nor shall any Junior Securities be redeemed, purchased or otherwise acquired (B) the number other than a redemption, purchase or other acquisition of shares of Common Stock made for purposes of an employee incentive or benefit plan of the Corporation or any subsidiary) (all such dividends, distributions, redemptions or purchases being hereinafter referred to as a "Junior Securities Distribution") for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any shares of any such stock) by the Corporation, directly or indirectly (except by conversion into which such share or exchange for Junior Securities), unless in each case (i) the full cumulative dividends on all outstanding shares of Series A the Senior Preferred Stock is then convertible. For purposes and any other Parity Securities shall (to the extent payable in cash) have been paid or set apart for payment for all past Dividend Periods with respect to the Senior Preferred Stock and all past dividend periods with respect to such Parity Securities and (ii) (to the extent payable in cash) sufficient funds shall have been paid or set apart for the payment of this Section 3(a), a the dividend for the current Dividend Period with respect to the Senior Preferred Stock and the current dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendParity Securities.

Appears in 1 contract

Samples: Subscription Agreement (Donaldson Lufkin & Jenrette Inc /Ny/)

Dividends. Declare or pay, directly or indirectly, any Dividends with respect to any Company, except that the following shall be permitted: (a) Holders to the extent constituting Dividends, (i) any Loan Party may consummate a transaction permitted pursuant to Section 6.05, (ii) any Loan Party may make Investments permitted pursuant to Section 6.04 and (iii) any Loan Party may take actions permitted pursuant to Section 6.08; (b) any Loan Party may pay Dividends to Borrower or any Subsidiary Guarantor and any Person that is not a Loan Party may pay Dividends on a ratable basis to its equity owners; (c) so long as no Default or Event of shares Default shall have occurred and be continuing or would result therefrom, the Loan Parties may pay dividends or distributions to the other Loan Parties or Borrower to permit such other persons to (i) repurchase Qualified Capital Stock of Series A Preferred Stock Borrower or any Loan Party from present or former employees (or the estates, family members or heirs) of such persons upon the death, disability or termination of employment of such employees or (ii) make payments in respect of Indebtedness issued by Borrower solely for the purposes described in clause (i); provided, that the aggregate amount of payments under this subsection (c), will not exceed $5,000,000 during any fiscal year; provided further that if any portion of such permitted dividend or distribution is not made in any fiscal year, such portion may be carried over for dividends or distributions to be made in accordance with clause (i) or (ii) above in the next succeeding fiscal year (with amounts expended in such next succeeding fiscal year to be applied first against the amount carried over and second against the amount set forth above in respect of such succeeding fiscal year) subject to the aggregate amount of payments under this subsection (c) (including any amounts carried over) not exceeding $10,000,000 during any fiscal year; (d) on and after the Final Completion Date and so long as no Default or Event of Default shall have occurred and be entitled continuing or would result therefrom, the Loan Parties may pay Dividends not otherwise permitted under any other subsection of this Section 6.07 in an amount not to cumulative dividends on exceed, in the Series A Preferred Stock payable semiannuallyaggregate (with respect to all Loan Parties), which dividends shall be declared by $500,000 per fiscal year; (e) to the Board extent constituting Dividends, the Loan Parties may pay Project Costs as permitted pursuant to the Disbursement Agreement; (f) the making of Directors any Dividend in exchange for, or a duly authorized committee thereof, out of the assets net cash proceeds of the Company legally available thereforsubstantially concurrent sale (other than to a Subsidiary of Borrower) of, Equity Interests of Borrower (other than Disqualified Capital Stock), or of any Person that is or becomes, substantially concurrently with such transaction, a holding company of Borrower, or from the substantially concurrent contribution of common equity capital to Borrower; (g) the repurchase of Equity Interests deemed to occur upon the exercise of stock options or warrants to the extent such Equity Interests represent a portion of the exercise price of those stock options or warrants; (h) any termination or cancellation of Equity Interests issued to, or reserved for issuance to, any director, officer or employee of the Loan Parties or Borrower, including upon the death, disability or termination of employment of such director, officer or employee; (i) Dividends constituting payment in respect of fractional shares relating to the exercise of stock options or warrants; (j) after the Final Completion Date, Dividends up to an amount contributed as capital contributions or received through issuances of Qualified Capital Stock and used to fund Project Costs at any time that the conditions to funding disbursements for Project Costs under the Disbursement Agreement were not satisfied; (k) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may pay dividends or distributions or make other payments to the other Loan Parties (or direct or indirect members in such Loan Parties) in an aggregate amount not to exceed the amount of equity funded to the Loan Parties (or direct or indirect members in such Loan Parties) by such Persons to the extent that at the time of funding or issuance constituted Qualified Additional Financing and excluding equity funded pursuant to the Completion Guarantee; provided that such dividends, distributions or payments shall only be made out of the Net Cash Proceeds of an incurrence of Indebtedness which also constitutes Qualified Additional Financing; and (l) for each taxable period during which Stockbridge/SBE Intermediate Company, LLC (“Intermediate”) is a partnership for U.S. federal tax purposes, Dividends to and from Holdings in an amount necessary to permit Intermediate to make a pro rata distribution on each April 15, June 15, September 15, and shall be payable semiannually commencing on the 180th day following the Issue Date January 15 (or the following next succeeding Business Day if any such payment date is not falls on other than a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend taxable period to its owners such that each direct or indirect owner of Intermediate receives an amount from such pro rata distribution from Intermediate sufficient to enable such owner to pay its U.S. federal, state and/or local income taxes (and, for as applicable) attributable to its share of the avoidance taxable income of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period Intermediate that is shorter or longer than a full semiannual dividend period will be computed on the basis attributable to Intermediate’s direct ownership of a 360-day year consisting Holdings and its indirect ownership of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period Borrower with respect to such taxable period (assuming that each owner is subject to income tax at the Series A Preferred Stockhighest combined marginal federal, then a dividend shall be payable in respect of each share of Series A Preferred Stock state, and/or local income tax rate applicable to any owner for such taxable period and taking into account the deductibility of state and local income taxes for U.S. federal income tax purposes (and any limitations thereon), the alternative minimum tax, any cumulative net taxable loss of Intermediate for prior taxable periods ending after the Closing Date to the extent such loss is of a character that would allow such loss to be available to reduce taxes in the current taxable period (taking into account any limitations on the utilization of such loss to reduce such taxes and assuming such loss had not already been utilized) and the character (e.g., long-term or short-term capital gain or ordinary or exempt) of the applicable income) and (ii) Dividends to Holdings and from Holdings in an amount equal to the greater Taxes of (i) Holdings and Intermediate and the expenses of preparing and filing the Tax returns of Holdings and Intermediate, in an amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable not to exceed $250,000 per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendannum.

Appears in 1 contract

Samples: Credit Agreement (Stockbridge/Sbe Investment Company, LLC)

Dividends. (a) Holders The holders of shares of Class B Voting Preferred Stock, Series A Preferred Stock shall be entitled to receive cumulative quarterly dividends payable in cash (or in kind to the extent provided below) on the Series A Preferred Stock payable semiannuallyfifteenth day of March, which dividends shall be declared by the Board of Directors or a duly authorized committee thereofJune, out of the assets of the Company legally available therefor, September and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) December in each year (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 of Class B Voting Preferred Stock, Series A (the "First Quarterly Dividend Payment Date"), in an amount per share (rounded to the nearest cent), subject to the provision for adjustment hereinafter set forth, equal to 100 times the aggregate per share amount of all cash dividends, and 100 times the aggregate per share amount (payable in kind) at of all non-cash dividends or other distributions, other than a dividend payable in shares of Common Stock or a subdivision of the rate per annum outstanding shares of 6% Common Stock (by reclassification or otherwise), declared on the Common Stock on or since the immediately preceding Quarterly Dividend Declaration Date, as defined below, or, with respect to the first Quarterly Dividend Declaration Date, since the first issuance of any share of Class B Voting Preferred Stock, Series A. In the event no dividend or distribution shall have been declared on the Common Stock during the period between any Quarterly Dividend Declaration Date and the next subsequent Quarterly Dividend Declaration Date, the holders of shares of Class B Voting Preferred Stock, Series A shall be entitled to receive a dividend of $0.01 per share on the Liquidation Preference; provided that, in the event that on any next subsequent Quarterly Dividend Payment Date. The Company shall declare a dividend on the Class B Voting Preferred Stock, Series A on the Company is not permitted fifth day of March, June, September and December of each year (each such date being referred to declare or pay such dividend or incur such liability either (x) herein as a matter of law or (y) under the terms of any loan agreement"Quarterly Dividend Declaration Date"), credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred commencing on the first succeeding Quarterly Dividend Payment Declaration Date after the first issuance of a share of Class B Voting Preferred Stock, Series A. In the event the Company shall at any time after July 19, 1996 (i) declare a dividend on the outstanding shares of Common Stock payable in shares of Common Stock, (ii) split up or divide the outstanding shares of Common Stock, (iii) combine the outstanding shares of Common Stock into a smaller number of shares, or (iv) issue any shares of its capital stock in a reclassification of the outstanding shares of Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is not prohibited from declaringthe continuing or surviving corporation), paying and incurring the liability then, in respect of each such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition tocase, and not in lieu of, regardless of whether any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Class B Voting Preferred Stock, Series A are then a dividend issued or outstanding, the amount per share to which each holder of shares of Class B Voting Preferred Stock, Series A would be entitled immediately prior to such event under the first sentence of this Section 1(a) shall be payable in respect adjusted by multiplying such amount by a fraction, the numerator of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) which is the number of shares of Common Stock into outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such share event. (b) Dividends shall begin to accrue and be cumulative on outstanding shares of Class B Voting Preferred Stock, Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a from the Quarterly Dividend Payment Date next preceding the date of issue of such shares: (i) unless the date of issue of such shares is prior to the period commencing on record date for the preceding Dividend Payment Date (or, if there is no preceding First Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to accrue from the Issue date of the first issuance of a share of Class B Voting Preferred Stock, Series A; or (ii) 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 Class B Voting Preferred Stock, Series A entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date) , in either of which events such dividends shall begin to accrue and ending on the day immediately prior to the next be cumulative from such Quarterly Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, Accrued but unpaid dividends shall not accrue or bear interest. Dividends paid on the shares of Class B Voting Preferred Stock, Series A in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be payable in respect allocated pro rata on a share-by-share basis among all such shares at the time outstanding. The board of Directors may fix a record date for the determination of holders of shares initially issued any Holder who is contractually obligated of Class B Voting Preferred Stock, Series A entitled to appear and vote in favor receive payment of any proposal made at a meeting of stockholders of dividend or distribution declared thereon, which record date shall be not more than 70 calendar days prior to the Company in order to effect date fixed for the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendpayment thereof.

Appears in 1 contract

Samples: Rights Agreement (Aetna Inc)

Dividends. (ai) Holders The record owner of shares of Series A Preferred Stock each Voting Trust Certificate shall be entitled to cumulative receive his or her pro rata share of any dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared paid or distributed by the Board Company upon the Shares represented by the Voting Trust Certificates and all other corporate distributions made by the Company in respect of Directors such Shares; provided, however, that, if any such dividend or a duly authorized committee thereof, out distribution includes shares of the assets capital stock of the Company legally available thereforwith voting rights, the certificates representing such shares of stock shall be deposited with the Voting Trustee subject to the terms of this Voting Trust, and the owner of the Voting Trust Certificate evidencing the Shares upon which such dividend or distribution is made shall be entitled to receive a new Voting Trust Certificate representing such newly-deposited shares of capital stock with voting rights. (ii) The record date fixed by the Company for the purpose of the payment of any dividend or for the making of any other distribution shall be the record date for the purpose of payment distribution to the owners of Voting Trust Certificates, and whenever any such record date shall be fixed, the owners of record of Voting Trust Certificates at the date so fixed shall exclusively be entitled to participate in the payment or distribution. Upon receipt by the Voting Trustee of any dividend or other distribution in respect of any Shares held by the Voting Trustee, the Voting Trustees shall promptly distribute the funds or property so received by them to the owners of Voting Trust Certificates to whom such funds or property should have been distributed by the Company if the foregoing provisions hereof had been observed. (iii) Notwithstanding the foregoing provisions of this Section 5, if the Company shall reclassify its Shares, reorganize, sell all or substantially all of its assets with or without dissolution, consolidate with or merge into another corporation, or if another corporation shall merge into the Company, the shares of capital stock into which the Shares then on deposit hereunder shall be reclassified and any shares of capital stock issued in exchange or substitution for the Shares then on deposit hereunder shall, if they are a non-voting shares, be distributed in accordance with the provisions of this Voting Trust directly to the record owners of outstanding Voting Trust Certificates, issued in respect of such Shares; or, if they are voting shares, they shall become subject to the terms and conditions of this Voting Trust as if such voting shares had been originally deposited hereunder, and shall be payable semiannually commencing on deposited with the 180th day following Voting Trustees, and the Issue Date owner of outstanding Voting Trust Certificates shall be entitled to receive new Voting Trust Certificates representing such newly deposited shares of capital stock with voting rights. (or the following Business Day if any such payment date is not a Business Dayiv) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in In the event that on any the Company allows cash dividends to be converted into, or to purchase shares of the Company's capital stock pursuant to the Company's Automatic Dividend Payment DateReinvestment Plan or similar program (the "DRIP"), the record owner of each Voting Trust Certificate may notify the Voting Trustees of the portion of the cash dividends attributable to the Shares represented by his or her Voting Trust Certificate to be reinvested in shares of the Company is (the "DRIP Shares"). Upon receipt of such notice, the Voting Trustees shall notify the Company's transfer agent of the number of Shares that should be subject to the DRIP. Upon receipt of any DRIP Shares, the Voting Trustees shall notify the Company's transfer agent that the DRIP Shares should be titled directly in the name of the Shareholder who elected to participate in the DRIP. Any DRIP Shares received by a Shareholder shall not permitted be subject to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendVoting Trust.

Appears in 1 contract

Samples: Voting Trust Agreement (Ulrich Voting Trust)

Dividends. (ai) Holders When, as, and if declared by the Board, out of shares funds legally available for that purpose, the holders of Series A D Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which receive before any dividends shall be declared and paid or set aside for Common Stock, dividends, which shall accrue on a daily basis at the Applicable Dividend Rate on the sum of the Original Cost of a share of Series D Preferred Stock, plus all accumulated and unpaid dividends thereon, payable on each September 30 and March 31 (each, a "Preferred Dividend Payment Date"), the first such Preferred Dividend Payment Date being the first Preferred Dividend Payment Date following the ninth anniversary of the First Closing Date. Dividends shall accrue at the Applicable Dividend Rate regardless of whether the Board has declared a dividend payment or whether there are any profits, surplus or other funds of the Corporation legally available for dividends. Any dividends which accrue pursuant to this Section 4(a)(i) and which are not paid prior to the next succeeding Preferred Dividend Payment Date shall be classified as "accumulated dividends" and shall remain "accumulated and unpaid dividends" until paid or otherwise satisfied pursuant to this Article XII. Dividends on each share of Series D Preferred Stock shall accrue pursuant to this Section 4(a)(i) from and including the ninth anniversary of the First Closing Date to and including the date such share is converted or redeemed in full and all accrued but unpaid dividends thereon are also converted or paid in full. All payments in cash due in cash under this Section 4(a) to any holder of shares of Series D Preferred Stock shall be made to the nearest cent. (ii) In addition to the rights to receive dividends pursuant to clause (i) above, when, as and if declared by the Board of Directors or a duly authorized committee thereofBoard, out of the assets of the Company funds legally available thereforfor the purpose, and the holders of Series D Preferred Stock shall be payable semiannually commencing on the 180th day following the Issue Date (entitled to share in any dividends declared and paid upon or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, set aside for the avoidance of doubt, Common Stock on a ratable basis based upon the Common Stock Equivalents represented by such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). Series D Preferred Stock. (iii) The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A D Preferred Stock on each Preferred Dividend Payment Date shall be paid to the holders of shares of the Preferred Stock as they appear on the stock records of the Corporation on such date (the "Preferred Record Date") as shall be fixed by the Board, which Preferred Record Date shall not be more than 60 days prior to the applicable Preferred Dividend Payment Date and shall not precede the date upon which the resolution fixing such Preferred Record Date is adopted, and if the Board shall not fix a Preferred Record Date, the Preferred Record Date shall be deemed to be the same date as the applicable Preferred Dividend Payment Date. (iv) Except as otherwise provided herein, if at any time the Corporation pays less than the total amount of dividends then accrued with respect to the Series D Preferred Stock, then a dividend such payment shall be payable in respect distributed ratably among the holders of each share of the Series A D Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) based upon the number of shares of Common Stock into which such share of Series A D Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendheld by each holder.

Appears in 1 contract

Samples: Securities Purchase Agreement (Gentle Dental Service Corp)

Dividends. USI and the Borrower will not, nor will they permit any Subsidiary to, declare or pay any dividend or make any distribution on its capital stock (other than dividends payable in its own capital stock) or redeem, repurchase or otherwise acquire or retire any of its capital stock at any time outstanding, except that (i) any Subsidiary of the Borrower may declare and pay dividends or make distributions to the Borrower or to any other Subsidiary of the Borrower, (ii) any Subsidiary of the Borrower which is not a Wholly-Owned Subsidiary may pay dividends to its shareholders generally so long as the 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, (iii) the Borrower may declare and make dividends or distributions to USI to enable USI to, and USI may (a) Holders pay any income, franchise or like taxes, (b) pay its operating expenses (including, without limitation, legal, accounting, reporting, listing and similar expenses) in an aggregate amount not exceeding $10,000,000 in any fiscal year (excluding in any event non-cash charges related to employee compensation or compensation to non-executive members of shares USI’s board of Series A Preferred Stock directors) and (c) so long as no Default or Unmatured Default shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallycontinuing or result therefrom, which dividends repurchase its common stock and warrants and/or redeem or repurchase vested management options, in each case, from directors, officers and employees of USI and its Subsidiaries, and (iv) so long as no Default or Unmatured Default shall be declared by continuing or result therefrom, the Board Borrower may make distributions to USI and USI may redeem, repurchase, acquire or retire an amount of Directors its capital stock or warrants or options therefor, or declare and pay any dividend or make any distribution on its capital stock (collectively, “Distributions”) if, at the time of making such Distribution, the Leverage Ratio, calculated on a duly authorized committee thereofpro forma basis based on USI’s most recent financial statements delivered pursuant to Section 6.1 (or, out prior to the delivery of the assets first such financial statements delivered hereunder, as of March 31, 2013) and giving effect to such Distribution and any Indebtedness incurred in connection therewith, and any Permitted Acquisition (including any incurrence of Indebtedness in connection therewith) and Material Disposition (including any reduction of Indebtedness in connection therewith) since the date of such financial statements, as if such Distribution and any such Permitted Acquisition and Material Disposition (and any incurrence or reduction of Indebtedness in connection with any of the Company legally available thereforforegoing) had occurred as of the first day of the four quarter period set forth in such financial statements is (a) less than to 3.00 to 1.00, on an unlimited basis, and shall be payable semiannually commencing on the 180th day following the Issue Date (b) greater than or the following Business Day if any such payment date is not a Business Day) (each such date being referred equal to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that3.00 to 1.00, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to not greater than the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Maximum Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendAmount.

Appears in 1 contract

Samples: Five Year Revolving Credit Agreement (United Stationers Inc)

Dividends. (ai) Holders The holders of shares of Series A the Preferred Stock shall be entitled to cumulative receive, when, as and if dividends on the Series A Preferred Stock payable semiannually, which dividends shall be are declared by the Board of Directors or a duly authorized committee thereof, out of the assets funds of the Company legally available therefor, cumulative dividends from the Preferred Stock Issue Date accruing at the rate per annum of 6.0% of the Liquidation Preference per share, payable quarterly in arrears on each March 31, June 30, September 30 and shall be payable semiannually December 31, commencing on the 180th day following the Issue Date December 31, 1998 (or the following Business Day if each a "Dividend Payment Date"). If any such payment date is not a Business Day) (each , such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share payment shall be made on the Liquidation Preference; provided thatnext succeeding Business Day, in to the event that on any Dividend Payment holders of record as of the next preceding March 1, June 1, September 1 and December 1 (each, a "Record Date"), the Company whether or not such Record Date is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall Business Day. Dividends will be payable in addition to, and not in lieu of, any dividend which would ordinarily be cash. Dividends payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period the Preferred Stock will be computed on the basis of a 360365/366-day year consisting and the actual number of twelve 30-day months. Commencing days elapsed and will be deemed to accrue on a daily basis. (ii) Dividends on the Preferred Stock shall accrue whether or not the Company has earnings or profits, whether or not there are funds legally available for the payment of such dividends and following the Meeting End Date, in the event that whether or not dividends are declared. Dividends will accumulate to the extent they are not paid on shares the Dividend Payment Date for the period to which they relate. The Company shall take all actions required or permitted under the Delaware General Corporation Law (the "DGCL") to permit the payment of Common Stock in any dividend period with respect to dividends on the Series A Preferred Stock, then a dividend shall be payable in respect including, without limitation, through the revaluation of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock its assets in accordance with the foregoing paragraph and DGCL, to make or keep funds legally available for the payment of dividends. (iiiii) No dividend whatsoever shall be declared or paid upon, or any sum set apart for the product payment of (A) the aggregate dividends payable per upon, any outstanding share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to any dividend period unless all dividends for all preceding dividend periods have been declared and paid, or declared and a Dividend Payment Date is sufficient sum set apart for the period commencing payment of such dividend, upon all outstanding shares of Preferred Stock. Unless full cumulative dividends on all outstanding shares of Preferred Stock for all past dividend periods shall have been declared and paid, or declared and a sufficient sum for the preceding Dividend Payment Date payment thereof set apart, then: (or, if there is a) no preceding Dividend Payment Date, the Issue Datedividend (other than a divided payable solely in shares of any Junior Securities) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders declared or paid upon, or any sum set apart for the payment of record on dividends upon, any shares of Junior Securities; (b) no other distribution shall be declared or made upon, or any sum set apart for the close payment of business on the day on which the Board any distribution upon, any shares of Directors Junior Securities, other than a distribution consisting solely of Junior Securities; (c) no shares of Junior Securities shall be purchased, redeemed or a duly authorized committee thereof declares the dividend payable otherwise acquired or retired for value (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(aexcluding an exchange for shares of other Junior Securities) to the contrary, and without limiting any other remedy available to by the Company or any of its subsidiaries; and (d) no monies shall be paid into or set apart or made available for a sinking or other partylike fund for the purchase, dividends shall redemption or other acquisition or retirement for value of any shares of Junior Securities by the Company or any of its subsidiaries. Holders of the Preferred Stock will not accrue or be entitled to any dividends, whether payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote cash, property or stock, in favor of any proposal made at a meeting of stockholders excess of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendfull cumulative dividends as herein described.

Appears in 1 contract

Samples: Exchange Agreement (Mafco Holdings Inc)

Dividends. In connection with the Offer, Xpediator and Bidco have agreed that, in each case subject to compliance with applicable laws, the Xpediator Directors should declare, and that Xpediator should pay, the Special Dividend in connection with the Offer, without such dividend otherwise impacting on the consideration payable under the Offer. The Special Dividend is conditional upon the Scheme becoming Effective (aor, if the Offer is implemented by way of a Takeover Offer, the Takeover Offer becoming or being declared unconditional in all respects). Xpediator Shareholders on the register of members at the Scheme Record Time (or, if the Offer is implemented by way of a Takeover Offer, the date on which the Takeover Offer is declared unconditional in all respects) Holders of shares of Series A Preferred Stock shall be entitled to cumulative dividends receive the Special Dividend. If the Scheme becomes Effective (or, if the Takeover Offer becomes or is declared unconditional), the Special Dividend will be paid not more than 14 days after the Effective Date. If, on or after the Series A Preferred Stock date of this Announcement and before the Effective Date, any dividend, distribution and/or other return of capital is declared, made or paid or becomes payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out in respect of the assets of the Company legally available thereforXpediator Shares (other than, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Dateexcess of, the Company is not permitted Special Dividend), Bidco reserves the right to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) reduce the consideration payable under the terms of the Offer for the Xpediator Shares by an amount up to the amount of such dividend, distribution and/or return of capital (or excess, as applicable), excluding any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability amount in respect of the Excluded Shares, in which case the relevant eligible Xpediator Shareholders will be entitled to receive and retain such Deferred Dividend (dividend and/or distribution and/or return of capital. If Bidco exercises its rights described above, any reference in this Announcement to the consideration payable under the terms of the Offer will be deemed to be a reference to the consideration as so reduced. Any exercise by Bidco of its rights referred to in this paragraph shall be the subject of an announcement and, for the avoidance of doubt, such Deferred Dividend shall not be payable regarded as constituting any revision or variation of the terms of the Scheme. Under the terms of the Co-operation Agreement, Xxxxxx Xxxxxxxxxx has, in addition tohis capacity as director and shareholder of Delamode Baltics UAB, a subsidiary of the Company, agreed to support and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on facilitate the basis payment of a 360-day year consisting dividend (of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect not more than €4.2 million) from Delamode Baltics UAB to the Series A Preferred StockCompany, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect create sufficient distributable reserves within the Stockholder Approval Company to permit the declaration and payment of the Special Dividend. Since Xxxxxx Xxxxxxxxxx is a director and substantial shareholder (or whose transferor Holder was so obligatedas defined by the AIM Rules) if such Holder (or such transferor Holder or of a subsidiary of the Affiliates Company, and depending on the amount of either) fails so any payment required, the payment of any resulting dividend from Delamode Baltics UAB to appear Justas Veršnickas may be deemed to be a related party transaction under the AIM Rules. Accordingly the Directors, having consulted with Zeus Capital, the Company’s nominated adviser under the AIM Rules, consider that the terms of this arrangement are fair and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendreasonable insofar as Xpediator Shareholders are concerned.

Appears in 1 contract

Samples: Co Operation Agreement

Dividends. Declare or pay any dividends; or --------- purchase, redeem, retire, or otherwise acquire for value any of its capital stock now or hereafter outstanding; or make any distribution of assets to its stockholders as such whether in cash, assets, or obligations of the Company; or allocate or otherwise set apart any sum for the payment of any dividend or distribution on, or for the purchase, redemption, or retirement of, any shares of its capital stock; or make any other distribution by reduction of capital or otherwise in respect of any shares of its capital stock; or permit any of its Restricted Subsidiaries (unless failure to so permit would constitute a breach of fiduciary duty) to purchase or otherwise acquire for value any stock of the Company or another Restricted Subsidiary, except that (1) the Company may declare and deliver dividends and make distributions payable solely in (a) Holders of shares of Series A Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets common capital stock of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date or (or the following Business Day if any such payment date is not a Business Dayb) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that dividends on any Dividend Payment DatePermitted Junior Securities (as defined below) payable in Permitted Junior Securities of the same type, (2) in connection with the purchase of minority equity interests held by Persons in any Restricted Subsidiary of the Company, the Company is not permitted to declare may issue its 10% Series A Exchangeable Preferred (par value .01 per share) or pay such dividend other equity securities which are pari passu or incur such liability either junior thereto; provided (x) the redemption date thereof -------- shall not be earlier than the redemption date in the 10% Series A Exchangeable Preferred as a matter of law or the Restructuring Effective Date, (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of cash dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period thereof and (z) the terms and conditions thereof shall not be adverse in an amount equal any respect to the greater interests of the Lenders (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Datecollectively, the Issue Date"Permitted Junior Securities") and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a3) to the contrary, and without limiting any other remedy available to the Company Guarantors may purchase or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders otherwise acquire for value stock of the Company Company, provided, that any such Guarantor shall -------- use such stock as consideration for or in order connection with any acquisition permitted pursuant to effect the Stockholder Approval this Agreement. (or whose transferor Holder was so obligatedF) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.SECTION 4.7 OF THE FACILITIES AGREEMENT IS AMENDED TO DELETE THE ----------- TERMS THEREOF IN THEIR ENTIRETY AND TO SUBSTITUTE THE FOLLOWING THEREFOR:

Appears in 1 contract

Samples: Facilities Agreement (Boston Chicken Inc)

Dividends. (a) Holders of shares of Series A Preferred No dividends or other distributions declared after the Effective Time on AFC Common Stock shall be entitled paid with respect to cumulative dividends on any shares of AFC Common Stock represented by an APY Stock Certificate until such APY Stock Certificate is surrendered for exchange according to the Series A Preferred procedures described above. No fractional shares of AFC Common Stock payable semiannuallywill be issued pursuant to the Merger. In lieu of the issuance of any fractional shares of AFC Common Stock, which dividends shall cash will be declared paid to holders of such fractional share in the amount of the product of such fractional share multiplied by the Average Stock Price. THE RECAPITALIZATION APY is currently authorized to issue only one class of APY Common Stock. The Board of Directors or of APY has approved, and SMA, the holder of more than a duly authorized committee thereof, out majority of the assets outstanding APY Common Stock, has approved by written consent, an amendment to the APY Charter that would authorize the issuance of APY Class B Common Stock. Immediately prior to and as a condition precedent to the consummation of the Company legally available thereforMerger, APY will file such Amendment with the Secretary of State of Delaware and will exchange one share of the APY Class B Common Stock for each share of APY Common Stock held by SMA. Such shares of APY Class B Common Stock shall be payable semiannually commencing on remain outstanding after the 180th day following Merger. See "The Charter Amendment" and "Appendix A-2--Form of Charter Amendment." CERTAIN REPRESENTATIONS AND WARRANTIES The Merger Agreement contains customary representations and warranties by AFC, Merger Sub and APY as to, among other things, (i) due organization, valid existence and good standing; (ii) corporate authority to enter into the Issue Date Merger Agreement and related agreements; (or iii) authorized capital stock; (iv) ownership of subsidiaries; (v) the following Business Day if any such payment date is not a Business Daylack of conflict of the Merger Agreement and related agreements and transactions with charters, bylaws, law and certain agreements; (vi) consents, approvals and authorizations of governmental entities; (each such date being referred to herein as a “Dividend Payment Date”vii) at compliance with law and contract; (viii) the rate per annum filing of 6% per share on certain documents with the Liquidation PreferenceCommission; provided that, in (ix) the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either accuracy of financial statements; (x) as the absence of certain litigation; (xi) the absence of certain changes including those having a matter material adverse effect, the payment of law or dividends other than regular quarterly cash dividends and a change in accounting policy; (yxii) under the terms receipt of fairness opinions; and (xiii) the lack of any loan agreementcontract or agreement obligating the payment of finder's fees, credit agreementbrokerage or agent's commissions, guarantyother than agreements with Salomon Brothers and Xxxxxxx Xxxxx. In addition, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period AFC represents that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) immediately following the amount otherwise payable in respect Effective Time, it will have available funds to satisfy the cash portion of such share of Series A Preferred Stock in accordance with the foregoing paragraph Merger Consideration; and (ii) to its knowledge, no event has occurred or condition exists in connection with the product Merger that would cause it to fail to satisfy any material applicable statute or written regulation. CERTAIN COVENANTS Conduct of (A) Business Pending the aggregate dividends payable per share of Common Stock in such dividend period times (B) Reorganization. Pursuant to the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertibleMerger Agreement, AFC and APY have made various customary covenants relating to the Merger Transactions. For purposes of this Section 3(a)APY has agreed that, a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.46

Appears in 1 contract

Samples: Information Statement (Allmerica Financial Corp)

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