Common use of Accruing Dividends Clause in Contracts

Accruing Dividends. The Corporation shall not declare, pay or set aside any dividends on shares of any other class or series of capital stock of the Corporation (other than dividends on Common Stock payable in shares of Common Stock in compliance with Section 4.6 below and dividends on the Series E-2 Preferred Stock including the Series E-2 Accruing Dividend, which dividends shall rank pari passu with any dividends on the Series E-1 Preferred Stock including the Series E-1 Accruing Dividend) unless (in addition to the obtaining of any consents required elsewhere in the Certificate of Incorporation) the holders of the Series E-1 Preferred Stock then outstanding shall first receive, or simultaneously receive, a dividend on each outstanding share of Series E-1 Preferred Stock in an amount at least equal to the greater of (i) the amount of the aggregate Series E-1 Accruing Dividends then accrued on such share of Series E-1 Preferred Stock and not previously paid and (ii) (A) in the case of a dividend on Common Stock or any class or series that is convertible into Common Stock, that dividend per share of Series E-1 Preferred Stock as would equal the product of (1) the dividend payable on each share of such class or series determined, if applicable, as if all shares of such class or series had been converted into Common Stock and (2) the number of shares of Common Stock issuable upon conversion of a share of Series E-1 Preferred Stock, in each case calculated on the record date for determination of holders entitled to receive such dividend or (B) in the case of a dividend on any class or series that is not convertible into Common Stock, at a rate per share of Series E-1 Preferred Stock determined by (1) dividing the amount of the dividend payable on each share of such class or series of capital stock by the original issuance price of such class or series of capital stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such class or series) and (2) multiplying such fraction by an amount equal to the Series E-1 Original Issue Price (as defined below); provided that, if the Corporation declares, pays or sets aside, on the same date, a dividend on shares of more than one class or series of capital stock of the Corporation, the dividend payable to the holders of Series E-1 Preferred Stock pursuant to this Section shall be calculated based upon the dividend on the class or series of capital stock that would result in the highest Series E-1 Preferred Stock dividend. The “Series E-1 Original Issue Price” shall mean $11.7323 per share, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series E-1 Preferred Stock.

Accruing Dividends. The Corporation shall not declare, pay or set aside any dividends on shares of any other class or series of capital stock of the Corporation (other than dividends on Common Stock payable in shares of Common Stock in compliance with Section 4.6 below and or dividends on the Series E-2 E Preferred Stock including the Series E-2 Accruing Dividend, which dividends shall rank pari passu with any dividends on the Series E-1 Preferred Stock including the Series E-1 Accruing DividendStock) unless (in addition to the obtaining of any consents required elsewhere in the Certificate of Incorporation) the holders of the Series E-1 D-1 Preferred Stock then outstanding shall first receive, or simultaneously receive, a dividend on each outstanding share of Series E-1 D-1 Preferred Stock in an amount at least equal to the greater of (i) the amount of the aggregate Series E-1 D-1 Accruing Dividends then accrued on such share of Series E-1 D-1 Preferred Stock and not previously paid and (ii) (A) in the case of a dividend on Common Stock or any class or series that is convertible into Common Stock, that dividend per share of Series E-1 D-1 Preferred Stock as would equal the product of (1) the dividend payable on each share of such class or series determined, if applicable, as if all shares of such class or series had been converted into Common Stock and (2) the number of shares of Common Stock issuable upon conversion of a share of Series E-1 D-1 Preferred Stock, in each case calculated on the record date for determination of holders entitled to receive such dividend or (B) in the case of a dividend on any class or series that is not convertible into Common Stock, at a rate per share of Series E-1 D-1 Preferred Stock determined by (1) dividing the amount of the dividend payable on each share of such class or series of capital stock by the original issuance price of such class or series of capital stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such class or series) and (2) multiplying such fraction by an amount equal to the Series E-1 D-1 Original Issue Price (as defined below); provided that, if the Corporation declares, pays or sets aside, on the same date, a dividend on shares of more than one class or series of capital stock of the Corporation, the dividend payable to the holders of Series E-1 D-1 Preferred Stock pursuant to this Section shall be calculated based upon the dividend on the class or series of capital stock that would result in the highest Series E-1 D-1 Preferred Stock dividend. The “Series E-1 D-1 Original Issue Price” shall mean $11.7323 5.1503 per share, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series E-1 D-1 Preferred Stock.

Accruing Dividends. The Corporation shall not declare, pay or set aside any dividends on shares of any other class or series of capital stock of the Corporation (other than dividends on Common Stock payable in shares of Common Stock in compliance with Section 4.6 below and dividends on the Series E-2 E-1 Preferred Stock including the Series E-2 E-1 Accruing Dividend, which dividends shall rank pari passu with any dividends on the Series E-1 E-2 Preferred Stock including the Series E-1 E-2 Accruing Dividend) unless (in addition to the obtaining of any consents required elsewhere in the Certificate of Incorporation) the holders of the Series E-1 E-2 Preferred Stock then outstanding shall first receive, or simultaneously receive, a dividend on each outstanding share of Series E-1 E-2 Preferred Stock in an amount at least equal to the greater of (i) the amount of the aggregate Series E-1 E-2 Accruing Dividends then accrued on such share of Series E-1 E-2 Preferred Stock and not previously paid and (ii) (A) in the case of a dividend on Common Stock or any class or series that is convertible into Common Stock, that dividend per share of Series E-1 E-2 Preferred Stock as would equal the product of (1) the dividend payable on each share of such class or series determined, if applicable, as if all shares of such class or series had been converted into Common Stock and (2) the number of shares of Common Stock issuable upon conversion of a share of Series E-1 E-2 Preferred Stock, in each case calculated on the record date for determination of holders entitled to receive such dividend or (B) in the case of a dividend on any class or series that is not convertible into Common Stock, at a rate per share of Series E-1 E-2 Preferred Stock determined by (1) dividing the amount of the dividend payable on each share of such class or series of capital stock by the original issuance price of such class or series of capital stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such class or series) and (2) multiplying such fraction by an amount equal to the Series E-1 E-2 Original Issue Price (as defined below); provided that, if the Corporation declares, pays or sets aside, on the same date, a dividend on shares of more than one class or series of capital stock of the Corporation, the dividend payable to the holders of Series E-1 E-2 Preferred Stock pursuant to this Section shall be calculated based upon the dividend on the class or series of capital stock that would result in the highest Series E-1 E-2 Preferred Stock dividend. The “Series E-1 E-2 Original Issue Price” shall mean $11.7323 13.6239 per share, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series E-1 E-2 Preferred Stock.