Common use of Participating Preferred Stock Clause in Contracts

Participating Preferred Stock. Subject in all cases to the provisions of Article NINTH, the preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends, qualifications and terms and conditions of redemption of the Participating Preferred Stock are: (1) The designation of the Participating Preferred Stock is “Participating Preferred Stock.” Each share of Participating Preferred Stock shall be identical in all respects with the other shares of Participating Preferred Stock except as to the dates from and after which dividends thereon shall be cumulative. (2) The number of shares of Participating Preferred Stock shall initially be 583,000, which number may from time to time be increased or decreased (but not below the number then outstanding) by the Board of Directors. Shares of Participating Preferred Stock acquired by the Corporation shall constitute authorized but unissued shares of Preferred Stock without designation as to series. Shares of Participating Preferred Stock may be issued in fractional shares, which fractional shares shall entitle the holder, in proportion to such holder’s fractional share, to all rights of a holder of a whole share of Participating Preferred Stock. (3) The holders of full or fractional shares of Participating Preferred Stock shall be entitled to receive, when and as authorized by the Board of Directors and declared by the Corporation, but only out of funds legally available therefor, dividends, (A) on each date that dividends or other distributions (other than dividends or distributions payable in Common Stock of the Corporation) are payable on or in respect of Common Stock comprising part of the Reference Package (as defined below), in an amount per whole share of Participating Preferred Stock equal to the aggregate amount of dividends or other distributions (other than dividends or distributions payable in Common Stock of the Corporation) that would be payable on such date to a holder of the Reference Package and (B) on the last day of March, June, September and December in each year, in an amount per whole share of Participating Preferred Stock equal to the excess (if any) of $425.00 (the “Base Dividend Amount”) over the aggregate dividends paid per whole share of Participating Preferred Stock during the three month period ending on such last day. Each such dividend shall be paid to the holders of record of shares of Participating Preferred Stock on the date, not exceeding sixty days preceding such dividend or distribution payment date, fixed for the purpose by the Board of Directors in advance of payment of each particular dividend or distribution. Dividends on each full and each fractional share of Participating Preferred Stock shall be cumulative from the date such full or fractional share is originally issued; provided that any such full or fractional share originally issued after a dividend record date and on or prior to the dividend payment date to which such record date relates shall not be entitled to receive the dividend payable on such dividend payment date or any amount in respect of the period from such original issuance to such dividend payment date.

Participating Preferred Stock. Subject in all cases to the provisions of Article NINTH, the preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends, qualifications and terms and conditions of redemption of the Participating Preferred Stock are: (1) 1.4.1. The distinctive serial designation of the Participating Preferred Stock is “this series shall be "Participating Preferred Stock.” " (hereinafter called "this Series"). Each share of Participating Preferred Stock this Series shall be identical in all respects with the other shares of Participating Preferred Stock this Series except as to the dates from and after which dividends thereon shall be cumulative. (2) 1.4.2. The number of shares of Participating Preferred Stock in this Series shall initially be 583,000, 500,000 which number may from time to time be increased or decreased (but not below the number then outstanding) by the Board of Directors. Shares of Participating Preferred Stock acquired this Series purchased by the Corporation shall constitute be canceled and shall revert to authorized but unissued shares of Preferred Stock without designation undesignated as to series. Shares of Participating Preferred Stock this Series may be issued in fractional shares, which fractional shares shall entitle the holder, in proportion to such holder’s 's fractional share, to all rights of a holder of a whole share of Participating Preferred Stockthis Series. (3) 1.4.3. The holders of full or fractional shares of Participating Preferred Stock this Series shall be entitled to receive, when and as authorized declared by the Board of Directors and declared by the CorporationDirectors, but only out of funds legally available therefor, dividends, (A) on each date that dividends or other distributions (other than dividends or distributions payable in Common Stock of the Corporation) are payable on or in respect of Common Stock comprising part of the Reference Package (as defined below), in an amount per whole share of Participating Preferred Stock this Series equal to the aggregate amount of dividends or other distributions (other than dividends or distributions payable in Common Stock of the Corporation) that would be payable on such date to a holder of the Reference Package and (B) on the last day of March, June, September and December in each year, in an amount per whole share of Participating Preferred Stock equal to the excess (if any) of $425.00 (the “Base Dividend Amount”) over the aggregate dividends paid per whole share of Participating Preferred Stock during the three month period ending on such last dayPackage. Each such dividend shall be paid to the holders of record of shares of Participating Preferred Stock this Series on the date, not exceeding sixty seventy days preceding such dividend or distribution payment date, fixed for the purpose by the Board of Directors in advance of payment of each particular dividend or distribution. Dividends on each full and each fractional share of Participating Preferred Stock this Series shall be cumulative from the date such full or fractional share is originally issued; issued provided that any such full or fractional share originally issued after a dividend record date and on or prior to the dividend payment date to which such record date relates shall not be entitled to receive the dividend payable on such dividend payment date or any amount in respect of the period from such original issuance to such dividend payment date.

Participating Preferred Stock. Subject in all cases to There is hereby established a series of Preferred Stock, par value $0.01 per share, of the provisions of Article NINTHCorporation, and the preferencesdesignation and certain terms, conversion or other rights, voting powers, restrictionspreferences and other rights of the shares of such series, and certain qualifications, limitations and restrictions thereon, are hereby fixed as to dividends, qualifications and terms and conditions of redemption of the Participating Preferred Stock arefollows: (1i) The distinctive serial designation of the Participating Preferred Stock is “this series shall be "Junior Participating Preferred Stock.” " (hereinafter called "this Series"). Each share of Participating Preferred Stock this Series shall be identical in all respects with the other shares of Participating Preferred Stock this Series except as to the dates from and after which dividends thereon shall be cumulative. (2ii) The number of shares of Participating Preferred Stock in this Series shall initially be 583,000500,000, which number may from time to time be increased or decreased (but not below the number then outstanding) by the Board of Directors. Shares of Participating Preferred Stock acquired this Series purchased by the Corporation shall constitute be canceled and shall revert to authorized but unissued shares of Preferred Stock without designation undesignated as to series. Shares of Participating Preferred Stock this Series may be issued in fractional shares, which fractional shares shall entitle the holder, in proportion to such holder’s 's fractional share, to all rights of a holder of a whole share of Participating Preferred Stockthis Series. (3iii) The holders of full or fractional shares of Participating Preferred Stock this Series shall be entitled to receive, when and as authorized declared by the Board of Directors and declared by the CorporationDirectors, but only out of funds legally available therefor, dividends, (A) on each date that dividends or other distributions (other than dividends or distributions payable in Common Stock of the Corporation) Corporation are payable on or in respect of Common Stock comprising part of the Reference Package (as defined below), in an amount per whole share of Participating Preferred Stock this Series equal to the aggregate amount of dividends or other distributions (other than dividends or distributions payable in Common Stock of the Corporation) that would be payable on such date to a holder of the Reference Package and (B) on the last day of March, June, September and December in each year, in an amount per whole share of Participating Preferred Stock this Series equal to the excess (if any) of $425.00 (the “Base Dividend Amount”) 1.00 over the aggregate dividends paid per whole share of Participating Preferred Stock this Series during the three three-month period ending on such last day. Each such dividend shall be paid to the holders of record of shares of Participating Preferred Stock this Series on the date, not exceeding sixty days preceding such dividend or distribution payment date, fixed for the that purpose by the Board of Directors in advance of payment of each particular dividend or distribution. Dividends on each full and each fractional share of Participating Preferred Stock this Series shall be cumulative from the date such full or fractional share is originally issued; provided that any such full or fractional share originally issued after a dividend record date and on or prior to the dividend payment date to which such record date relates shall not be entitled to receive the dividend payable on such dividend payment date or any amount in respect of the period from such original issuance to such dividend payment date.

Participating Preferred Stock. Subject in all cases to There is hereby established a series of Preferred Stock, no par value per share, of the provisions of Article NINTHCorporation, and the preferencesdesignation and certain terms, conversion or other rights, voting powers, restrictionspreferences and other rights of the shares of such series, and certain qualifications, limitations and restrictions thereon, are hereby fixed as to dividends, qualifications and terms and conditions of redemption of the Participating Preferred Stock arefollows: (1i) The distinctive serial designation of the Participating Preferred Stock is “this series shall be "Series X Junior Participating Preferred Stock.” " (hereinafter called "this Series"). Each share of Participating Preferred Stock this Series shall be identical in all respects with the other shares of Participating Preferred Stock this Series except as to the dates from and after which dividends thereon shall be cumulative. (2ii) The number of shares of Participating Preferred Stock in this Series shall initially be 583,000100,000, which number may from time to time be increased or decreased (but not below the number then outstanding) by the Board of Directors. Shares of Participating Preferred Stock acquired this Series purchased by the Corporation shall constitute be canceled and shall revert to authorized but unissued shares of Preferred Stock without designation undesignated as to series. Shares of Participating Preferred Stock this Series may be issued in fractional shares, which fractional shares shall entitle the holder, in proportion to such holder’s 's fractional share, to all rights of a holder of a whole share of Participating Preferred Stockthis Series. (3iii) The holders of full or fractional shares of Participating Preferred Stock this Series shall be entitled to receive, when and as authorized declared by the Board of Directors and declared by the CorporationDirectors, but only out of funds legally available therefor, dividends, (A) on each date that dividends or other distributions (other than dividends or distributions payable in Common Stock of the Corporation) Corporation are payable on or in respect of Common Stock comprising part of the Reference Package (as defined below), in an amount per whole share of Participating Preferred Stock this Series equal to the aggregate amount of dividends or other distributions (other than dividends or distributions payable in Common Stock of the Corporation) that would be payable on such date to a holder of the Reference Package and (B) on the last day of March, June, September and December in each year, in an amount per whole share of Participating Preferred Stock this Series equal to the excess (if any) of $425.00 (the “Base Dividend Amount”) 1.00 over the aggregate dividends paid per whole share of Participating Preferred Stock this Series during the three three-month period ending on such last day. Each such dividend shall be paid to the holders of record of shares of Participating Preferred Stock this Series on the date, not exceeding sixty 60 days preceding such dividend or distribution payment date, fixed for the that purpose by the Board of Directors in advance of payment of each particular dividend or distribution. Dividends on each full and each fractional share of Participating Preferred Stock this Series shall be cumulative from the date such full or fractional share is originally issued; provided that any such full or fractional share originally issued after a dividend record date and on or prior to the dividend payment date to which such record date relates shall not be entitled to receive the dividend payable on such dividend payment date or any amount in respect of the period from such original issuance to such dividend payment date.

Participating Preferred Stock. Subject in all cases to the provisions of Article NINTH, the preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends, qualifications and terms and conditions of redemption of the Participating Preferred Stock are: (1) The designation of the Participating Preferred Stock is “"Participating Preferred Stock.” " Each share of Participating Preferred Stock shall be identical in all respects with the other shares of Participating Preferred Stock except as to the dates from and after which dividends thereon shall be cumulative. (2) The number of shares of Participating Preferred Stock shall initially be 583,000, which number may from time to time be increased or decreased (but not below the number then outstanding) by the Board of Directors. Shares of Participating Preferred Stock acquired by the Corporation shall constitute authorized but unissued shares of Preferred Stock without designation as to series. Shares of Participating Preferred Stock may be issued in fractional shares, which fractional shares shall entitle the holder, in proportion to such holder’s 's fractional share, to all rights of a holder of a whole share of Participating Preferred Stock. (3) The holders of full or fractional shares of Participating Preferred Stock shall be entitled to receive, when and as authorized by the Board of Directors and declared by the Corporation, but only out of funds legally available therefor, dividends, (A) on each date that dividends or other distributions (other than dividends or distributions payable in Common Stock of the Corporation) are payable on or in respect of Common Stock comprising part of the Reference Package (as defined below), in an amount per whole share of Participating Preferred Stock equal to the aggregate amount of dividends or other distributions (other than dividends or distributions payable in Common Stock of the Corporation) that would be payable on such date to a holder of the Reference Package and (B) on the last day of March, June, September and December in each year, in an amount per whole share of Participating Preferred Stock equal to the excess (if any) of $425.00 (the “"Base Dividend Amount”") over the aggregate dividends paid per whole share of Participating Preferred Stock during the three month period ending on such last day. Each such dividend shall be paid to the holders of record of shares of Participating Preferred Stock on the date, not exceeding sixty days preceding such dividend or distribution payment date, fixed for the purpose by the Board of Directors in advance of payment of each particular dividend or distribution. Dividends on each full and each fractional share of Participating Preferred Stock shall be cumulative from the date such full or fractional share is originally issued; provided that any such full or fractional share originally issued after a dividend record date and on or prior to the dividend payment date to which such record date relates shall not be entitled to receive the dividend payable on such dividend payment date or any amount in respect of the period from such original issuance to such dividend payment date. The term "Reference Package" shall mean 10,000 shares of Common Stock. Holders of shares of Participating Preferred Stock shall not be entitled to any dividends, whether payable in cash, property or stock, in excess of full cumulative dividends, as herein provided on Participating Preferred Stock. So long as any shares of Participating Preferred Stock are outstanding, no dividend (other than a dividend in Common Stock or in any other stock ranking junior to the Participating Preferred Stock as to dividends and upon liquidation) shall be declared or paid or set aside for payment or other distribution declared or made upon the Common Stock or upon any other stock ranking junior to the Participating Preferred Stock as to dividends or upon liquidation, nor shall any Common Stock nor any other stock of the Corporation ranking junior to or on a parity with the Participating 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 shares of any such stock) by the Corporation (except by conversion into or exchange for stock of the Corporation ranking junior to the Participating Preferred Stock as to dividends and upon liquidation), unless, in each case, the full cumulative dividends (including the dividend to be due upon payment of such dividend, distribution, redemption, purchase or other acquisition) on all outstanding shares of Participating Preferred Stock shall have been, or shall contemporaneously be, paid. (4) In the event of any merger, consolidation, reclassification or other transaction in which the shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in any such case the shares of Participating Preferred Stock shall at the same time be similarly exchanged or changed in an amount per whole share equal to the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, that a holder of the Reference Package would be entitled to receive as a result of such transaction. (5) In the event of any liquidation, dissolution or winding up of the affairs of the Corporation, whether voluntary or involuntary, the holders of full and fractional shares of Participating Preferred Stock shall be entitled, before any distribution or payment is made on any date to the holders of the Common Stock or any other stock of the Corporation ranking junior to the Participating Preferred Stock upon liquidation, to be paid in full an amount per whole share of Participating Preferred Stock equal to the greater of (A) $170,000.00 (the "Base Liquidation Amount") or (B) the aggregate amount distributed or to be distributed prior to such date in connection with such liquidation, dissolution or winding up to a holder of the Reference Package (such greater amount being hereinafter referred to as the "Liquidation Preference"), together with accrued dividends to such distribution or payment date, whether or not earned or declared. If such payment shall have been made in full to all holders of shares of Participating Preferred Stock, the holders of shares of Participating Preferred Stock as such shall have no right or claim to any of the remaining assets of the Corporation. In the event the assets of the Corporation available for distribution to the holders of shares of Participating Preferred Stock upon any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, shall be insufficient to pay in full all amounts to which such holders are entitled pursuant to the first paragraph of this subparagraph (d)(5), no such distribution shall be made on account of any shares of any other class or series of Preferred Stock ranking on a parity with the shares of Participating Preferred Stock upon such liquidation, dissolution or winding up unless proportionate distributive amounts shall be paid on account of the shares of Participating Preferred Stock, ratably in proportion to the full distributable amounts for which holders of all such parity shares are respectively entitled upon such liquidation, dissolution or winding up. Upon the liquidation, dissolution or winding up of the Corporation, the holders of shares of Participating Preferred Stock then outstanding shall be entitled to be paid out of assets of the Corporation available for distribution to its stockholders all amounts to which such holders are entitled pursuant to the first paragraph of this subparagraph (d)(5) before any payment shall be made to the holders of Common Stock or any other stock of the Corporation ranking junior upon liquidation to the Participating Preferred Stock. For the purposes of this subparagraph (d)(5), the consolidation or merger of, or binding share exchange by, the Corporation with any other corporation shall not be deemed to constitute a liquidation, dissolution or winding up of the Corporation. (6) The shares of Participating Preferred Stock shall not be redeemable. (7) In addition to any other vote or consent of stockholders required by law or by the Charter, each whole share of Participating Preferred Stock shall, on any matter, vote as a class with any other stock comprising part of the Reference Package and voting on such matter and shall have the number of votes thereon that a holder of the Reference Package would have. (8) In the event the Corporation shall, at any time or from time to time (other than in connection with the merger of Xxxxxx Investment Management LLC, a Delaware limited liability company ("Spinco"), with and into the Corporation), (A) declare or pay a dividend on any shares of Common Stock payable in shares of Common Stock, (B) subdivide any shares of Common Stock or (C) combine any Common Stock into a smaller number of shares, then and in each such case (X) the Reference Package after such event shall be the number of shares of Common Stock that a holder of the Reference Package immediately prior to such event would hold thereafter as a result thereof and (Y) the Base Dividend Amount and the Base Liquidation Amount shall be similarly adjusted to reflect such dividend, subdivision or combination of shares.