Common use of Dividends Clause in Contracts

Dividends. (a) The holders of the outstanding Class A-1 Preferred Stock shall be entitled to receive, out of funds legally available therefore, cumulative dividends at the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 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 bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) days.

Dividends. (a) The holders Holders of the outstanding Class A-1 shares of Series A Preferred Stock shall be entitled to receivecumulative 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 funds the assets of the Company legally available thereforetherefor, cumulative dividends at the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends and shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, semiannually commencing on the fifteenth 180th day of October, January, April and July following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each of such dates 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 date of issuancepreceding Dividend Payment Date (or, and shall be pro-rated for the first such quarterly period if the same there is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given dateno preceding Dividend Payment Date, the average of Issue Date) and ending on the closing bid prices for day immediately prior to the Company’s common stock for the ten trading days immediately preceding the next Dividend Payment Date. Such 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 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 payable in respect of shares initially issued any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared Holder who is contractually obligated to appear and set apart for such shares before the Corporation makes vote in favor of any distribution (as hereinafter defined) to the holders proposal made at a meeting of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares stockholders of the CorporationCompany in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the purchase or redemption Affiliates of either) fails so to appear and vote in favor. Any shares of issued to such Holders shall bear the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysStockholder Approval Legend.

Dividends. (a) The holders Holders of the outstanding Class A-1 Preferred Stock shall be entitled to receive, when and as declared by the Board of Directors either out of funds legally available therefore, cumulative dividends at therefor or through the annual rate issuance of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterlycommon stock, and the Company shall accrue, quarterly in arrears on the fifteenth day March 31, June 30, September 30, and December 31 of Octobereach year, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on the date earlier of issuanceDecember 31, 2008, or any Conversion Date (as defined below), cumulative dividends on the Preferred Stock at the rate per share (as a percentage of the Stated Value per share) equal to five percent (5%) per annum, payable in cash or shares of Common Stock (as defined in Section 7) at the option of the Holders. The Company may pay, at its option, accrued dividends at any time while the Preferred Stock remains outstanding. The Company shall pay all accrued and unpaid dividends within five (5) days following either (a) the conversion of any or all of the Preferred Stock or (b) the redemption by the Company of any or all of the remaining outstanding shares of Preferred Stock. The number of shares of Common Stock issuable as payment of dividends hereunder shall equal the aggregate dollar amount of dividends then being paid, divided by the Conversion Price (as defined in Section 5(c)) then in effect. Dividends on the Preferred Stock shall be calculated on the basis of a 360-day year, shall accrue daily commencing the Issuance Date (as defined in Section 7), 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 deemed to accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declareddeclared and whether or not there are profits, surplus or other funds of the Company legally available for the payment of dividends. Such 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 any other accrued and unpaid dividends which accrued prior to such dividend payment date, without regard to any sale or disposition of such Preferred Stock subsequent to the applicable record date but prior to the applicable dividend payment date. Except as otherwise provided herein, if at any time the Company pays less than the total amount of dividends then accrued on account of the Preferred Stock, such payment shall be cumulative so 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 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 if is addressed to the Company. (b) Notwithstanding anything to the contrary contained herein, the Company may not issue shares of Common Stock in payment of dividends on the Preferred Stock (and must deliver cash in respect thereof) if: (i) the number of shares of Common Stock 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 any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such dividends a sufficient number of shares before the Corporation makes any distribution (as hereinafter defined) to the holders 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 the Common Stock is then listed for trading). Accrued but unpaid Payment of dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of Common Stock is further subject to the Corporationprovisions of Section 5. (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), nor shall the Company directly or indirectly pay or declare any dividend or make any distribution upon, nor shall any distribution be made in respect of, any Junior Securities, nor shall any monies be set aside for or applied to the purchase or redemption of shares of the Corporation for cash (through a sinking fund or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms otherwise) of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysJunior Securities.

Dividends. (aA) The holders of shares of the outstanding Class A-1 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 receivethe Additional Payment. For the avoidance of doubt, out the holders of funds legally available therefore, cumulative dividends at the annual rate of 6Series 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 per share purchase price 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 ($1.10ii). (B) of To the Class A-1 extent that dividends on the Series A Preferred Stock. Such Stock have not been declared and paid, such dividends shall be cumulative and compound quarterly at the Yield from the most recent date to which dividends have been paid, or if no dividends have been paid, from the Issue Date and shall be payable quarterly in shares of the Company’s Class A-1 Preferred Stock quarterly, arrears on the fifteenth day of October, JanuaryJanuary 15, April 15, July 15 and July October 15 of each year or, if any such date is not a Business Day, the next succeeding Business Day commencing [ ], 201[ ] (each of such dates being each, a “Dividend Payment Date”) commencing in the form of additional shares of Series A Preferred Stock, as calculated based on the date Liquidation Preference (other than amounts in respect of issuanceBreaches as described in Section 5(A), and which shall be propaid in U.S. dollars). Any dividend payable on the Series A Preferred Stock for any partial dividend period will be computed on the basis of a 360-rated for day year consisting of twelve 30-day months. Dividends will be payable to holders of the first such quarterly period if Series A Preferred Stock as they appear in the same is less than 91 (ninety-one) days. All shares stock records of common stock the Corporation at the close of business on the applicable record date, which shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in date set by the case of stock on a given dateBoard or, if not set, the average last day of the closing bid prices for the Company’s common stock for the ten trading days calendar month immediately preceding the applicable Dividend Payment Date (each, a “Dividend Record Date. Such ”). (C) No dividends on shares of the Series A Preferred Stock shall accrue on each be authorized by the Board or declared by the Corporation or paid or set apart for payment by the Corporation if such share commencing declaration or payment would be prohibited by law. (D) Notwithstanding the foregoing Section 5(C), dividends on the date of issue, and shall Series A Preferred Stock will accrue from day to daydaily whether or not the Corporation has earnings, whether or not earned or declared. Such dividends shall be cumulative so that if there are funds legally available for the payment of such dividends in respect of any previous quarterly dividend period shall and whether or not have been paid on, the deficiency shall be fully paid on such dividends are declared or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stockaside. Accrued but unpaid dividends shall on the Series A Preferred Stock will not bear interestinterest and holders of the Series A Preferred Stock will not be entitled to any dividends in 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 “Distributioncapital gain dividends” (as defined in this section 5 means Section 857 of the transfer Internal Revenue Code of cash 1986, as amended (the “Code”)) any portion (the “Capital Gains Amount”) of the dividends (as determined for federal income tax purposes) paid or property without considerationmade available for the year to holders of all classes of stock (the “Total Dividends”), whether then the portion of the Capital Gains Amount that shall be allocable to the 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 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 way of the Corporation to its stockholders. (F) No dividends or other distributions (other than a dividend or otherwise (except a dividend 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 than repurchases pursuant to binding contractual commitments of Junior Stock held by employees, directors or consultants upon termination of their employment or services) by the Corporation) Corporation or the purchase or redemption on its behalf (except by conversion of shares of the 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 payment of the dividend due on that Dividend Payment Date. A holder of Series A Preferred Stock on a Dividend Record Date that surrenders (or whose transferee surrenders) any shares for conversion on the corresponding Dividend Payment Date shall receive the dividend payable by the Corporation for cash or property (except for an exchange on the Series A Preferred Stock on that date, and the converting holder need not include payment in the amount of such dividend upon surrender of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Series A Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysfor conversion.

Dividends. (a) The Subject to the rights of holders of the outstanding Class A-1 Preferred Stock 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 or through any combination of cash and shares of Series A Preferred Stock at the Corporation’s sole election, as provided pursuant to Section 4. Dividends on the Series A Preferred Stock shall be payable quarterly in arrears at the Dividend Rate, and shall accumulate on a daily basis from the 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 Corporation prohibit the current payment of dividends, (ii) there shall be earnings or funds of the Corporation legally available for the payment of such dividends or (iii) the Corporation declares the payment of dividends). Dividends shall be payable quarterly in arrears on each Dividend Payment Date (commencing on [●], 2017) to the Holders as they appear on the Corporation’s stock register at the Close of Business on the relevant Dividend Record Date. Dividends payable for any period less than a full 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. (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 no interest or dividends on such payment will accrue or accumulate, as the case may be, in respect of the delay. (c) No dividend shall be declared or paid upon, or any sum of cash set apart for the payment of dividends upon, any outstanding share of 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, a dividend 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 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 full on, or a sufficient sum of cash or number of shares of Series A Preferred Stock for the payment thereof is set apart for such dividends upon, the Series A 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. The foregoing limitation shall not apply to: (i) conversions into or exchanges for, (A) in the case of Parity Stock, shares of Parity Stock or Junior Stock or cash solely in 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 all cases bear to each other the same ratio that accumulated and unpaid dividends per share (whether or not declared) on the shares of Series A Preferred Stock and shares of such Parity Stock bear to each other, in proportion to their respective liquidation preferences. (e) Holders of shares of Series A Preferred Stock shall not be entitled to any dividend in excess of full cumulative dividends. (f) Holders at the Close of Business on a Dividend Record Date shall be entitled to receive, when, as and if declared by the Board, out of funds legally available thereforefor payment, cumulative dividends at the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in dividend payment on their respective shares of the Company’s Class A-1 Series A Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being a “corresponding Dividend Payment Date”) commencing ; provided, however, that shares of Series A Preferred Stock surrendered for conversion during the period between the Close of Business on any Dividend Record Date and the Close of Business on the date of issuanceConversion Date or the Mandatory Conversion Date, as applicable, shall only be entitled to the dividends accrued and shall be pro-rated for unpaid through the first such quarterly period if Conversion Date or the same is less than 91 Mandatory Conversion Date, respectively. (ninety-oneg) days. All shares of common stock shall be valued at Subject to the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given dateforegoing, 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 (payable in respect of any previous quarterly dividend period shall not have been paid oncash, securities or other property) as may be determined by the deficiency shall Board may be fully declared and 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 bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or ’s securities, including Common Stock, from time to time out of funds legally available for such payment, and the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant Holders shall not be entitled to the terms of any employee incentive plan, agreement or arrangement) including participate in any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysdividends.

Dividends. (a) The holders of Subject to its ability to do so under applicable law, the outstanding Class A-1 Preferred Stock shall be entitled Buyer agrees to receive, out of funds legally available therefore, cumulative dividends at pay the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, First Year Dividend to its shareholders on the fifteenth day of October, January, April and July First Anniversary. (each of such dates being a “Dividend Payment Date”b) commencing on the date of issuanceThe Seller shall, and shall be pro-rated for 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 first such quarterly period if Buyer shall cause the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given dateInitial Stockholders, the average 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 closing bid prices for the Company’s common stock for the ten trading days immediately preceding the restrictions contained in Section 6(h), a Person described in Section 7(b) or (c) may: (i) sell any Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date Waiver Securities to an unrelated third party free of issueany restrictions imposed by a Dividend Waiver Agreement, and shall accrue from day to dayupon such sale, 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 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 bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of the Dividend Escrow Agreement, if applicable, the Escrow Agent shall release such Dividend Waiver Securities from escrow upon receipt by it of the agreed consideration therefor and shall pay to the seller the amount of the consideration received less such amount as would be necessary to pay the First Year Dividend on such Dividend Waiver Securities, which amount shall be retained by the Escrow Agent and held in escrow pursuant to the terms of the Dividend Escrow Agreement. Any amounts deposited in escrow pursuant to this paragraph and not used to pay the First Year Dividend shall be refunded, together with any employee incentive planinterest accrued thereon, agreement to such seller upon the payment of the First Year Dividend; and (ii) exercise any warrants, rights or arrangement) including other options in respect of any Dividend Waiver Securities, and upon notifying the Escrow Agent of such exercise the Escrow Agent shall promptly take all such steps as are necessary to exercise such warrants, rights or other options in respect of any Dividend Waiver Securities, provided that any shares of Buyer Common Stock issuable upon any such transfer, purchase or redemption exercise shall remain subject to the applicable Dividend Waiver Agreement and shall be held in escrow by a subsidiary the Escrow Agent and pursuant to the terms of the Corporation. Dividend Escrow Agreement. (e) The time of any distribution by way of dividend Buyer shall be the date of declaration thereof obligated and the time of agrees to pay 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 exchange for shares the time and all expenses of the distribution is Escrow Agent in connection with the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysDividend Escrow Agreement.

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) The 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 the outstanding Class A-1 Preferred Stock Parent’s board of 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 receivethe Parent and the Parent may redeem, out repurchase, acquire or retire an amount of funds legally available thereforeits capital stock or warrants or options therefor, cumulative dividends or declare and pay any dividend or make any distribution on its capital stock (collectively, “Distributions”), either (a) if at the annual rate time of 6% per annum of making such Distribution the per share purchase price Leverage Ratio ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, calculated on a pro forma basis based on the fifteenth day of October, January, April Parent’s most recent financial statements delivered pursuant to Section 6.1 and July (each of such dates being a “Dividend Payment Date”) commencing on giving effect to any Permitted Acquisition since the date of issuancesuch financial statements, such Distribution and shall be pro-rated for any Indebtedness incurred in connection therewith, all in accordance with the first such quarterly period if the same terms of this Agreement) is less than 91 or equal to 2.75 to 1.00, on an unlimited basis, and (ninety-oneb) days. All shares of common stock shall be valued if at the Fair Market Value thereof. As used herein Fair Market Value shall mean in time of making such Distribution the case of stock Leverage Ratio (calculated on a given date, pro forma basis based on the average of the closing bid prices for the CompanyParent’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on most recent financial statements delivered pursuant to Section 6.1 and giving effect to any Permitted Acquisition since the date of issuesuch financial statements, such Distribution and shall accrue from day to dayany Indebtedness incurred in connection therewith, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends all in respect of any previous quarterly dividend period shall not have been paid on, the 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 bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to accordance with the terms of any employee incentive plan, agreement or arrangementthis Agreement) including any such transfer, purchase or redemption by a subsidiary of is greater than 2.75 to 1.00 in an amount not greater than the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysMaximum Payment Amount.

Dividends. (a) The holders Each Holder of the outstanding Class A-1 Series A Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors, out of funds legally available thereforetherefor, cumulative cash dividends on each share of Series A Preferred Stock at the annual a rate of 6% per annum equal to 13.0% of the per share purchase price ($1.10) Liquidation Preference of the Class A-1 Preferred Stocksuch share. Such All dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 daycumulative, 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 annually 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. Such 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 cumulative 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 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 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 Series 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 a prorated dividend on the Series A Preferred Stock at the rate aforesaid from the Dividend Payment Date 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 amount of such unpaid dividends in respect shall be paid before any sum shall be set aside for or applied by the Corporation to the purchase, redemption or other acquisition for value of any previous quarterly shares of Series A Junior Securities (either pursuant to any applicable sinking fund requirement or otherwise) or any dividend period shall not have been paid on, the deficiency or other distribution shall be fully paid on or declared and set apart for payment on any Series A Junior Securities (the date of any such shares before actions to be referred to as the "Series A Junior Payment Date"); provided, however, that the foregoing shall not (i) prohibit the Corporation makes any distribution from repurchasing shares of Series A Junior Securities from a Holder who is, or was, a director or employee of the Corporation (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares an affiliate of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property and (except for an exchange of shares of the Corporation or shares acquired by ii) prohibit the Corporation from employees pursuant making dividends, other distributions, redemptions, repurchases or acquisitions in respect of Series A Junior Securities payable in Series A Junior Securities and cash in lieu of fractional shares of such Series A Junior Securities. (f) Dividends payable on Series A Preferred Stock for any period less than one year shall be computed on the basis of a 360-day year consisting of twelve 30-day months and the actual number of days elapsed in the period for which such dividends are payable. (g) The Corporation shall not claim any deduction from gross income for dividends paid on Series A Preferred Stock in any Federal income tax return, claim for refund, or other statement, report or submission made to the terms 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)(1) of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor provision). At the reasonable request of any employee incentive planHolder (and at the expense of such Holder), agreement or arrangementthe Corporation shall join in the submission to the Internal Revenue Service of a request for a ruling that the dividends paid on Series A Preferred Stock shall be eligible for the dividends received deduction under Section 243(a) (1) including any such transfer, purchase or redemption by a subsidiary of the CorporationCode (or any successor provision). The time 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 distribution by way dividends (within the meaning of dividend shall be 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 exchange for shares the time Section 316(a) of the distribution is Code or any successor provision) paid on Series A Preferred Stock. To the date when extent possible, the Corporation acquires the shares in such exchange. The Board principles of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled this paragraph A(3)(g) shall also apply with respect to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysstate and local income taxes.

Dividends. (a) The holders Subject to sub-clause (b) below, the Parent will not, and will not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to the Parent or any of its Subsidiaries, except that: (i) Subsidiaries of the outstanding Class A-1 Preferred Stock 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 connection with such Dividends or other distributions to NCL International Ltd., NCL America Holdings, LLC or Arrasas Limited shall be entitled to receive, out received promptly by the Parent directly or indirectly by way of funds legally available therefore, cumulative dividends at Dividend; (ii) the annual rate of 6% per annum Parent may pay Dividends in respect of the per share purchase price ($1.10) tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated tax returns for each relevant jurisdiction of the Class A-1 Preferred Stock. Such dividends shall be payable in shares NCLC Group or holder of the CompanyParent’s Class A-1 Preferred Capital Stock quarterlywith respect to income taxable as a 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 fifteenth day Parent may pay Dividends in an amount not to exceed 50% of October, January, April Consolidated Net Income of the Parent and July its Subsidiaries for the period (each of such dates being a “Dividend Payment Date”taken as one period) commencing on January 1, 2010 and ending on the 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 time of issuance, such Dividend and shall be pro-rated after giving effect thereto the ratio of Total Net Funded Debt to Consolidated EBITDA for the first such quarterly period if four consecutive fiscal quarters last ended for which financial statements have been provided to the same Facility Agent pursuant to Section 9.01 is less than 91 5.50:1.00. (ninety-oneb) days. All shares of common stock The Parent shall be valued at not authorize, declare or pay any Dividends between April 1, 2020 and the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 latest Maturity Date in respect of the Deferred Loans, provided that any previous quarterly dividend period breach of this sub-clause shall not have been paid on, the 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 result in an Event of Common Stock. Accrued Default but unpaid dividends shall not bear interest. “Distribution” will instead result in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysmandatory prepayment event under Section 4.02(d).

Dividends. (a) The So long as any shares of Preferred Stock shall be outstanding, the holders of the outstanding Class A-1 such Preferred Stock shall be entitled to receive, receive out of any funds legally available thereforetherefor, cumulative preferential dividends at the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, Dividend Rate on the fifteenth day of OctoberLiquidation Preference hereunder, January, April and July (each of such dates being a “Dividend Payment Date”) commencing payable quarterly on the date last Business Day 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 declaredcalendar quarter. Such dividends shall be cumulative so that if and begin to accrue from the Original Issue Date, whether or not declared and whether or not there shall be net profits or net assets of the Company legally available for the payment of those dividends. (b) The dividend will be payable (i) prior to the effective date of a Chapter 11 plan of reorganization with respect to the Company, in the form 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 and at the Company's election, in cash or in shares of Common Stock having an Appraised Value equal to such cash dividend payment. (c) So long as any shares of Preferred Stock shall be 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 any previous quarterly the Preferred Stock for all past and current dividend period shall not periods have been paid onand all amounts in respect of the redemption of Preferred Stock pursuant to Section 6 have been paid, the deficiency and (ii) no shares of Common Stock shall be fully paid on purchased, redeemed 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 bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees Company and no funds shall be paid into or set aside or made available for a sinking fund for the purchase, redemption or acquisition thereof until all dividends in respect of the Preferred Stock for all past and current dividend periods have been paid and all amounts in respect of the redemption of Preferred Stock pursuant to Section 6 have been paid. (d) Notwithstanding anything to the terms contrary contained herein, if, on any date, an Event of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend Default shall have occurred and be 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 Corporationcontinuing, whether or not pursuant 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 contract compound annual rate of an earlier date; provided that where a negotiable debt security 16%, for as long as such Event of Default is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) dayscontinuing.

Dividends. (a) The holders Holders of the issued and outstanding Class A-1 shares of Preferred Stock shall be entitled to receive, out of funds assets legally available thereforefor the payment of dividends, cumulative dividends at on the annual rate terms described below: (i) Holders of 6% per annum shares of Preferred Stock shall be entitled to participate equally and ratably with the per share purchase price holders of shares of Common Stock in all dividends paid on the shares of Common Stock ($1.10other 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 Class A-1 Preferred last sentence of Section 6(a)(i)(B)). Dividends payable pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock. Such , and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock. (ii) In addition to any dividends pursuant to Section 4(a)(i), the Corporation shall pay, if, as and when declared by the Board of Directors, out of funds legally available therefor, on 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 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 payable quarterly in arrears, if, as and when so authorized and declared by the Board of Directors, on each Preferred Dividend Payment Date, commencing on the first Preferred Dividend Payment Date following the Issuance Date of such share. The amount of Preferred Dividends accruing with respect to any share of Preferred Stock for any day shall be determined by dividing (x) the Implied Quarterly Dividend Amount 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 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 Preferred Stock for any day shall be determined by dividing (x) 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 of Preferred Dividends payable with respect to any share of Preferred Stock for any Payment Period shall equal the sum of the Preferred Dividends accrued in accordance with the 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 (with $.005 being rounded upward). (iii) The Preferred Dividends may, at the 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 extent payment in cash on such date would be prohibited under the terms, conditions or provisions of 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 the Company’s Class A-1 Preferred Stock quarterlywith 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 Preferred Stock to 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. Each Participating Dividend or Preferred Dividend shall be payable to the Holders of Preferred Stock as they appear on the fifteenth day Register at the close of October, January, April and July business on the record date designated by the Board of Directors for such dividends (each of such dates being date, a “Dividend Payment Record Date”), which (i) commencing on with respect to Participating Dividends, shall be the same day as the record date for the payment of issuancedividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Preferred Dividends, shall be pro-rated for the first such quarterly period if the same is not more than thirty (30) days nor less than 91 ten (ninety-one10) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the applicable Preferred Dividend Payment Date. Such dividends shall accrue on each such share commencing Notwithstanding the foregoing, but subject to the proviso in the first sentence of Section 4(a)(iii), the Base Amount Accrued Dividends may be declared and paid in cash or in shares of Preferred Stock at any time to Holders of record on the Dividend Payment Record Date therefor. (b) Upon the occurrence of a Triggering Event, the Dividend Rate shall increase by the Noncompliance Additional Rate from and including the date on which the Triggering Event shall occur and be continuing through but excluding the date on which all then occurring Triggering Events are no longer continuing. The Dividend Rate shall not be increased further pursuant to this Section 4(b) for a subsequent Triggering Event occurring while the 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 consent of issuethe Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, and shall accrue from day to day, whether or not earned or declared. Such no dividends shall be cumulative so that if such dividends in respect of any previous quarterly dividend period shall not have been declared or paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes payment, or other distributions declared or made, upon any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends Junior Securities, nor shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without considerationany Junior Securities be redeemed, whether by way of dividend purchased or otherwise acquired for any consideration (except nor shall any moneys be paid to or made available for a dividend in sinking fund for the redemption of any shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 Junior Securities) by the Corporation, whether directly or not pursuant indirectly (except, subject to a contract and in accordance with the provisions of an earlier date; provided that where a negotiable debt security is issued in 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 time consent of the distribution is Holders representing at least a majority of the date when then-issued and outstanding shares of Preferred Stock, the Corporation acquires shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases of shares of Common Stock from employees, officers or directors of the shares Corporation in such exchange. The Board the ordinary course of Directors may fix business) for any consideration or pay any moneys or make available for a record date sinking fund for the determination redemption of holders any shares of Class A-1 such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock entitled Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to receive payment pay all of a dividend declared thereonits debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable Law. (e) For the avoidance of doubt, which record date the consequences described in Sections 4(b), (c) and (d) above shall be no more than sixty constitute the sole and exclusive remedies of the Holders upon the occurrence of the Triggering Event described in clause (60vii) daysof the definition thereof.

Dividends. (a) The Subject to clause 11(c) below, if the Company declares and pays any dividends on the Ordinary Shares, then, in that event, holders of the outstanding Class A-1 Preferred Stock Preference Shares shall be entitled to 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 record 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”), the Board of Directors shall (subject to the Company’s compliance with the provisions of the Act and the Articles) declare and the holders of Preference Shares shall receive, out of funds legally available thereforein addition to the dividends described in clause 11 (a), cumulative dividends at the an annual rate of 6equal to 10% per annum of the per share purchase price Accreted Value, calculated on the basis of a 360-day year, consisting of twelve 30-day months, which shall accrue on a daily basis from the 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 ($1.10) of the Class A-1 Preferred Stock. Such unless any such day is not a Business Day, in which event such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of Octobernext succeeding Business Day, January, April and July without accrual to the actual payment date) (each of such dates being date, a “Dividend Payment Date”) commencing on ). Unless otherwise specified in a resolution of directors, accrued and unpaid dividends shall compound and be added to 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 Fair Market Accreted Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days effect immediately preceding the prior to each Dividend Payment Date. Such ; provided, that, in lieu thereof, such accrued and unpaid 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 may (i) be cumulative so that if such dividends in respect of any previous quarterly dividend period shall not have been paid on, the 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 Preference Shares in cash or (ii) be paid in cash or compound and be added to the Accreted Value in any combination thereof, in each case as specified in a resolution of directors. (c) The Company shall not bear interest. “Distribution” in this section 5 means the transfer of cash declare or property without considerationpay any dividends on, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) make any other distributions with respect to or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transferredeem, purchase or redemption by a subsidiary otherwise acquire for consideration, any Junior Securities unless and until (i) all accrued and unpaid dividends on the Preference Shares have been paid in full and (ii) prior to the IPO Dividend Date, the affirmative vote or written consent of the Corporation. The time 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) redemption, purchase or other acquisition of 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 the Company or any of its subsidiaries; (ii) exchange, redemption, reclassification or conversion of any distribution by way class or series of dividend shall be Junior Securities for any class or series of Junior Securities; or (iii) purchase of fractional interests in any Junior Securities under the date conversion or exchange provisions of declaration thereof and such Junior Securities or the time security being converted or exchanged, or in connection with any combination or reclassification 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysJunior Securities.

Dividends. (a) The holders of the outstanding Class A-1 Preferred Stock Holders shall be entitled to receive, 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 shall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds legally available thereforeof the Company, cumulative 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 made to the nearest cent (with $0.005 being rounded upward). (ii) Each Dividend if, as and when such Dividends are declared by the Board of Directors, shall be paid to the Holders in cash or, at the annual rate of 6% per annum option of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable Holder, in shares of the Company’s Class A-1 Common Stock. Any shares of Common Stock issued in payment of a Dividend on Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being 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 Fair Market Value thereofclosing price of the last Trading Day preceding the record date designated by the Board of Directors relating to such Dividends. As used herein Fair Market Value Notwithstanding anything in this Certificate of Designation to the contrary, until the Company has obtained the Requisite Stockholder Approval, the Company may not issue shares of Common Stock in payment of a Dividend to the extent such payment would result in an issuance of shares of Common Stock in excess of the Requisite Stockholder Approval. (iii) Each Dividend shall mean in be paid pro rata to the case Holders. Each Dividend shall be payable to the Holders as they appear on the Register at the Close of stock Business on a given the date which is 15 days preceding the applicable Dividend Payment Date (such date, an “Dividend Payment Record Date”). (a) If the average 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 Dividend 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 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 closing bid prices 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 Series C Preferred Stock but occurs on or prior to the next Dividend Payment Date, then the Holder of such share of Series C Preferred Stock at the Close of Business on such Dividend Payment Record Date will be entitled, notwithstanding the related Liquidation, conversion or redemption, as applicable, to receive, on or, at the Company’s common stock for the ten trading days immediately preceding the election, before such Dividend Payment Date. Such dividends shall accrue , such declared Dividend on each such share commencing of Series C Preferred Stock. Except as provided in this Section 4(c), Dividends on any share of Preferred Stock will cease to accumulate from and after the date of issuerelating to a Liquidation pursuant to Section 6, 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 upon any previous quarterly dividend period shall not have been paid on, the 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 bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares conversion of the Corporation) Series C Preferred Stock pursuant to Section 7, or the purchase or upon any redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees Series C Preferred Stock pursuant to the terms of any employee incentive planSection 8, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysas applicable.

Dividends. (a) The holders Holders of the then outstanding Class A-1 shares of Series C Preferred Stock shall be entitled to receive, when and as authorized by the Board of Directors, out of funds legally available thereforefor the payment of dividends, cumulative preferential cash dividends at the annual rate of 66.25% of the $25.00 liquidation preference per annum (equivalent to a fixed annual amount of the $1.5625 per share purchase price ($1.10) of the Class A-1 Preferred Stockshare). Such dividends shall be cumulative from [ • ], 20211 and shall be payable quarterly in shares of the Company’s Class A-1 Preferred Stock quarterly, arrears on the fifteenth day of October, Januaryor before January 15, April 15, July 15 and July October 15 of each year or, if not a business day, the next succeeding business day (each of such dates being each, a “Dividend Payment Date”) commencing ). Any dividend payable on the date of issuance, and Series C Preferred Stock for any partial dividend period shall be procomputed on the basis of a 360-rated for the first such quarterly period if the same is less than 91 (ninetyday year consisting of twelve 30-one) daysday months. All shares of common stock Dividends shall be valued payable to holders of record as they appear in the stock records of the Corporation at the Fair Market Value thereof. As used herein Fair Market Value close of business on the applicable record date, which shall mean in be the last day of each of March, June, September and December, as the case of stock on a given datemay be, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the applicable Dividend Payment Date (each, a “Dividend Record Date”). Such 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 the foregoing, dividends on the Series C Preferred Stock shall accrue on each such share commencing on whether or not the date terms and provisions set forth in Section 3(b) hereof at any time prohibit the current payment of issue, and shall accrue from day to daydividends, whether or not earned the Corporation has earnings, whether or declared. Such dividends shall be cumulative so that if not there are funds legally available for the payment of such dividends in respect of any previous quarterly dividend period shall and whether or not have been paid on, the 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 Stockdividends are declared. Accrued but unpaid dividends on the Series C Preferred Stock shall not bear interest. “Distribution” accumulate as of the Dividend Payment Date on which they first become payable. (d) Except as provided in this section 5 means Section 3(e) below, unless full cumulative dividends on the transfer of cash Series C Preferred Stock have been or property without considerationcontemporaneously 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, whether by way of dividend or otherwise no dividends (except a dividend other than dividends in shares of Common Stock or dividends in shares of any series of Preferred Stock ranking junior to the CorporationSeries C Preferred Stock as to dividends and upon liquidation) shall be declared or paid or set aside for payment nor shall any other distribution be declared or made upon the purchase 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 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 series 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 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 of the Corporation for cash or property (except for an exchange Series C Preferred Stock shall first be credited against the earliest accrued but unpaid dividend due with respect to such shares which remains payable. Holders of shares of the Corporation or shares acquired by the Corporation from employees pursuant Series C Preferred Stock shall not be entitled to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 Corporationdividend, whether payable in cash, property or not pursuant to a contract stock in excess of an earlier date; provided that where a negotiable debt security is issued in exchange for shares full cumulative dividends on the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Series C Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysas described above.

Dividends. (a) The holders Each Holder of the outstanding Class A-1 Series B Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors, out of funds legally available thereforetherefor, cumulative cash dividends on each share of Series B Preferred Stock at the annual a rate of 6% per annum equal to 13.5% of the per share purchase price ($1.10) Liquidation Preference of the Class A-1 Preferred Stocksuch share. Such All dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 daycumulative, 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 annually 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. Such 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 cumulative 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 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 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 Series 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 a prorated dividend on the Series B Preferred Stock at the rate aforesaid from the Dividend Payment Date 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 amount of such unpaid dividends in respect shall be paid before any sum shall be set aside for or applied by the Corporation to the purchase, redemption or other acquisition for value of any previous quarterly shares of Series B Junior Securities (either pursuant to any applicable sinking fund requirement or otherwise) or any dividend period shall not have been paid on, the deficiency or other distribution shall be fully paid on or declared and set apart for payment on any Series B Junior Securities (the date of any such shares before actions to be referred to as the "Series B Junior Payment Date"); provided, however, that the foregoing shall not (i) prohibit the Corporation makes any distribution from repurchasing shares of Series B Junior Securities from a Holder who is, or was, a director or employee of the Corporation (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares an affiliate of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property and (except for an exchange of shares of the Corporation or shares acquired by ii) prohibit the Corporation from employees pursuant making dividends, other distributions, redemptions, repurchases or acquisitions in respect of Series B Junior Securities payable in Series B Junior Securities and cash in lieu of fractional shares of such Series B Junior Securities. (f) Dividends payable on Series B Preferred Stock for any period less than one year shall be computed on the basis of a 360-day year consisting of twelve 30-day months and the actual number of days elapsed in the period for which such dividends are payable. (g) The Corporation shall nor claim any deduction from gross income for dividends paid on Series B Preferred Stock in any Federal Income tax return, claim for refund, or other statement, report or submission made to the terms 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 employee incentive planHolder (and at the expense of such Holder), agreement or arrangementthe 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) including any such transfer, purchase or redemption by a subsidiary of the CorporationCode (or any successor provision). The time 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 distribution by way dividends (within the meaning of dividend shall be 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 exchange for shares the time Section 316(a) of the distribution is Code or any successor provision) paid on Series B Preferred Stock. To the date when extent possible, the Corporation acquires the shares in such exchange. The Board principles of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled this paragraph B(3)(g) shall also apply with respect to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysstate and local income taxes.

Dividends. (a) The holders If on any date while PSUs are outstanding hereunder, the Company shall pay any dividend on the Shares (other than a dividend payable in Shares), the number of PSUs (if any) held by the Participant shall be increased by a number equal to: (a) the product of (x) the number of outstanding PSUs held by the Participant as of the outstanding Class A-1 Preferred Stock shall be entitled related dividend record date, multiplied by (y) a dollar amount equal to receive, out of funds legally available therefore, cumulative dividends at the annual rate of 6% per annum of the per share purchase price Share amount of any cash dividend ($1.10) or, in the case of the Class A-1 Preferred Stock. Such dividends shall be any dividend payable in shares of whole or in part other than in cash or Shares, the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each per Share value of such dates being a “Dividend Payment Date”dividend, as determined in good faith by the Committee), divided by (b) 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in of a Share on the payment date of such dividend. (b) In the case of stock any dividend declared on Shares that is payable in the form of Shares, the number of PSUs, if any, held by the Participant shall be increased by a number equal to the product of (I) the number of outstanding PSUs held by the Participant as of the related dividend record date, multiplied by (II) the number of Shares (including any fraction thereof) payable as a dividend on a given dateShare. Shares shall be transferred with respect to all additional PSUs granted pursuant to this Section 4 at the same time as Shares are transferred with respect to the Earned PSUs to which such additional PSUs were attributable. (c) For purposes of this Section 4, the average number of PSUs held by the Participant as 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 applicable dividend period shall not have been paid on, the 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 bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty deemed to equal (60i) dayszero (0), if such dividend record date occurs prior to the Determination Date or (ii) the Earned PSUs (if any) (with any additional PSUs granted pursuant to this Section 4 to be added to the Earned PSUs held by Participant), if such dividend record date occurs after the Determination Date; provided that, if any dividend on Shares was paid by the Company during the period beginning on the Date of Grant and ending on the Determination Date, on the Determination Date, an additional number of PSUs calculated in accordance with this Section 4, assuming Participant had held the number of Earned PSUs (if any) on the record date of such dividend(s), shall be immediately added to the number of Earned PSUs established as of the Determination Date.

Dividends. (a) The holders of the outstanding Class A-1 Preferred Stock Dividends that become payable on Restricted Shares -------------------- shall be entitled 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 (each, a "RS Dividend Date"), the Company shall be deemed to receivehave reinvested any cash dividend otherwise then payable on the Restricted Shares in a number of phantom shares of 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, out of funds legally available therefore, cumulative dividends the phantom shares then credited to the Dividend Escrow Account shall be deemed to receive a dividend at the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends then applicable dividend rate, which shall be 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 shares 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 Company’s Class A-1 Preferred Stock quarterlysame vesting and other restrictions as the Restricted Shares with respect to which dividends became payable, on and with any fractional share being treated as a cash dividend that is subject to the fifteenth day of October, January, April escrow and July (each of such dates being a “Dividend Payment Date”) commencing on reinvestment procedures in this Section 4. Any other non-cash dividends credited with respect to Restricted Shares shall be subject to the date of issuanceescrow and reinvestment procedures in this Section 4, and shall be pro-rated valued for purposes of this Section 4 at the first such quarterly period if fair market value thereof as of the same is less than 91 relevant RS Dividend Date, as determined by the Compensation Committee of the Board of Directors (ninety-onethe "Committee") daysin its sole discretion. All On the Vesting Date, the Company shall deliver out of escrow to the Grantee that whole number of shares of common stock shall be valued at Common Stock equal to the Fair Market Value thereof. As used herein Fair Market Value shall mean in whole number of phantom shares then credited to the case of stock on a given date, Dividend Escrow Account as the average result 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, deemed investment and shall accrue from day to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends reinvestment in respect of any previous quarterly dividend period shall not have been paid on, the 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 bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in phantom shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant dividends attributable to the terms Restricted Shares. The value of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend fractional share shall be 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 paid in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) dayscash.

Dividends. (a) The holders From and after the first date of issuance of any Preferred Shares (the “Initial Issuance Date”), the Preferred Shares shall commence accruing dividends (“Dividends”) at the Dividend Rate computed on the basis of a 360-day year and twelve 30-day months. Dividends shall be payable in arrears on the first Trading Day of each Fiscal Quarter (each, a “Dividend Date”) with the first Dividend Date being the first Trading Day of the outstanding Class A-1 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 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 (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 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 receivesuch Holder’s or its designee’s balance account with DTC through its Deposit/Withdrawal at Custodian system, out 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 funds legally available thereforesuch Holder or its designee, cumulative dividends 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 Capitalized Dividend. (c) Prior to the payment of Dividends on a Dividend Date, Dividends on the Preferred Shares shall accrue at the annual rate Dividend Rate and be payable by way of 6% per annum inclusion of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being 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 Fair Market Value thereof. As used herein Fair Market Value shall mean Dividends in the case Conversion Amount on each Conversion Date in accordance with Section 4(b) or upon any redemption in accordance with Section 9 or upon any required payment upon any Bankruptcy Triggering Event. From and after the occurrence and during the continuance of stock on a given dateany Triggering Event, the average of Dividend Rate in effect with respect to such determination shall automatically be increased to the closing bid prices 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 common stock for failure to pay such Dividends at the ten trading days Default Rate on the applicable Dividend Date)), the adjustment referred to in the preceding sentence shall cease to be effective as of the calendar day immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on following the date of issue, such cure; provided that the Dividends as calculated and unpaid at such increased rate during the continuance of such Triggering Event shall accrue from day continue 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 deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) apply to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant extent relating to the terms days after the occurrence of any employee incentive plan, agreement or arrangement) such Triggering Event through and including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time such cure 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysTriggering Event.

Dividends. (a) The holders of the shares of outstanding Class A-1 Redeemable Convertible Preferred Stock shall be entitled to receiveentitled, when, as and if declared by the Board of Directors, out of funds legally lawfully available therefore, therefor to receive cumulative dividends at the annual rate of 6% per annum of the 15% per share purchase price on the Liquidation Preference (equivalent to $1.1015.00 per annum per share), subject to adjustment as provided herein, payable quarterly in arrears (the “DIVIDEND RATE”). The Dividend Rate shall decrease to a rate per annum of 12% per share on the Liquidation Preference (equivalent to $12 per annum per share) if the Closing Price of the Class A-1 Preferred StockCommon Stock equals or exceeds 150% of the then-effective Conversion Price for at least 180 consecutive Trading Days. Such dividends Dividends payable for each full Dividend Period will be computed by dividing the Dividend Rate by four and shall be payable in shares of arrears on each Dividend Payment Date for the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of Dividend Period ending immediately prior to such dates being a “Dividend Payment Date”) commencing , to the holders of record of Redeemable Convertible Preferred Stock at the close of business on the date of issuance, and shall be pro-rated for the first Record Date applicable to such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 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 the Company legally available for the payment of such share commencing on the date of issue, dividends) and shall accrue from on a day-to-day to daybasis, whether or not earned or declared, from and after the Issue Date. Such dividends Dividends payable for any partial Dividend Period or 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 cumulative so that if such computed on the basis of days elapsed over a 360-day year consisting of twelve 30-day months. Accumulations of dividends in respect on shares of any previous quarterly dividend period shall not have been paid on, the 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 Redeemable Convertible Preferred Stock shall not bear interest. “Distribution” in this section 5 means The initial dividend rate on the transfer 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 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 property without considerationCommon Stock, if permitted under Section 3A, has been set apart for the 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, 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 any dividend payment or payments on the Redeemable Convertible Preferred Stock which may be in arrears. (d) If (i) within 45 days after a demand to file the Shelf Registration Statement has been made in accordance with the Investor Rights Agreement, the Shelf Registration Statement has not been filed with the Commission, (ii) within 135 days after a demand to file the Shelf Registration Statement has been made in accordance with the Investor Rights Agreement, the Shelf Registration Statement has not been declared effective by way 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 dividend Transfer Restricted Securities during the period that any Transfer Restricted Securities (other than Transfer Restricted Securities held or otherwise beneficially owned by Affiliates of the Company, other than the Initial Holder) remain outstanding (except each such event referred to in clauses (i), (ii) and (iii), a dividend “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 filing of a post-effective amendment to the Shelf Registration Statement to incorporate annual audited financial information with respect to the Company where such post-effective amendment is not yet effective and needs to be declared effective to permit Holders to use the related prospectus, (B) the 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 the CorporationRedeemable Convertible Preferred Stock acquired by any existing Holder or beneficial owner of the Redeemable Convertible Preferred Stock or (C) other material events with respect to 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 case of clauses (i)(A) or the purchase or redemption (C), if such Registration Default referred to in clause (iii) of shares Section 3(d) occurs for a continuous period in excess of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan30 days, agreement or arrangementadditional dividends as described in Section 3(d) including any such transfershall accrue in accordance therewith from, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be and including, 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 Corporationsuch Registration Default occurs until, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is but excluding, the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysRegistration Default is cured.

Dividends. Declare or pay, or permit any of its Subsidiaries to declare or pay, any dividends or make any other distribution on Capital Stock of Rayonier or any of its Subsidiaries (a) The holders other than dividends or distributions payable solely in Capital Stock of the outstanding Class A-1 Preferred Stock shall be entitled to receiveRayonier or, out of funds legally available therefore, cumulative dividends at the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given datedividends paid to Rayonier or any of its Subsidiaries, the average Capital Stock of such Subsidiary) or purchase, redeem, defease or otherwise acquire or retire for value, or permit any of its Subsidiaries to purchase, redeem, defease or otherwise acquire or retire for value any of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment DateCapital Stock of Rayonier or any of its Subsidiaries at any time outstanding except as provided in this Section 5.03(a). Such dividends shall accrue on each such share commencing on the date So long as no Default or Event of issueDefault has occurred and is then continuing, Rayonier and shall accrue from day to day, whether or not earned or declared. Such dividends its Subsidiaries shall be cumulative so that if such dividends in respect of any previous quarterly dividend period shall not have been paid onpermitted to redeem, the 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 bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend repurchase or otherwise (except a dividend acquire or retire any of their respective Capital Stock and declare and pay dividends on their respective Capital Stock from time to time in shares of the Corporation) amounts determined by Rayonier or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant such Subsidiaries; provided, however, that subject to the terms of the next sentence, in no event shall Rayonier (or, after any employee incentive planAdditional Borrower Effective Date, agreement the Additional Borrower) declare or arrangementpay dividends on its Capital Stock if dividends (other than dividends or distributions payable solely in Capital Stock of Rayonier (or, after the Additional Borrower Effective Date, the Additional Borrower)) including paid in, or with respect to, any period of four Fiscal Quarters, in the aggregate, would exceed the sum of (1) 90% of Funds From Operations for such transfer, purchase or redemption by a subsidiary period plus (2) the aggregate amount of dividends permitted pursuant to the foregoing clause (1) in the preceding period of four Fiscal Quarters in excess of the Corporationaggregate amount dividends actually paid during such period. The time of any distribution by way of dividend shall be Notwithstanding the date of declaration thereof and foregoing, unless at the time of such distribution any distribution by purchase or redemption Event of shares Default has occurred and is then continuing under Section 6.01(a), Rayonier (and, if applicable any Additional Borrower) shall be the day permitted to declare and pay whatever amount of cash or property dividends is transferred by the Corporation, whether or not pursuant necessary for Rayonier to maintain its tax status as a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysREIT.

Dividends. (a) The holders To the extent necessary to satisfy the requirements of the outstanding Class A-1 Preferred Stock shall be entitled to receive, out of funds legally available therefore, cumulative dividends at the annual rate of 6% per annum of the per share purchase price ($1.10Section 857(a)(1) of the Class A-1 Preferred Code for the taxable year of ICH ending at the Effective Time, ICH shall declare and pay a dividend (the "Final ICH Dividend") to holders of shares of ICH Stock, the record and payment dates for which shall be on or before the close of business on the last business day prior to the Effective Time, in an amount sufficient to permit ICH to satisfy such requirements. Such If ICH determines it necessary to declare the Final ICH Dividend, and such Final ICH Dividend is not paid in the ordinary course of business, consistent with past practice, as provided in Section 5.2(a)(i) hereof, it shall notify ACT at least ten days prior to the date for the ICH Stockholder Meeting (as defined below), and ACT shall declare a dividend per ACT Common Share, the record date for which shall be the close of business on the last business day prior to the Effective Time, in an amount per share equal to the quotient obtained by dividing (x) the Final ICH Dividend per share of ICH Stock paid by ICH by (y) the Exchange Ratio. (b) No dividends or other distributions with respect to ACT Common Shares with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the ACT Common Shares represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 2.5, in each case until the surrender of such Certificate in accordance with this Article II. Subject to the effect of applicable escheat laws, as soon as reasonably practicable following surrender of any such Certificate there shall be paid to the holder of such Certificate, without interest, (i) at the time of such surrender, the amount of any cash payable in lieu of any fractional ACT Common Share to which such holder is entitled pursuant to Section 2.5 and (ii) if such Certificate is exchangeable for one or more whole ACT Common Shares, (x) at the time of such surrender the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such whole ACT Common Shares and (y) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to such surrender and with a payment date subsequent to such surrender payable with respect to such whole ACT Common Shares. (c) Notwithstanding any provision of this Article II to the contrary, dividends shall be payable in shares paid by ICH pro rata with respect to each outstanding share of the Company’s Class A-1 Preferred beneficial interest within a particular class of ICH Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 paid by ACT pro rata with respect to each outstanding share of beneficial interest of ACT within a particular class in respect accordance with the requirements of any previous quarterly Section 562(c) of the Code (including, as necessary, by transferring cash to an appropriate paying agent), and no dividend period payments shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) accrue to the holders benefit of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash ACT or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation ICH for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment failure of a dividend declared thereon, which record date shall be no more than sixty (60) daysformer holder of ICH Stock to surrender any certificate representing any share of ICH Stock.

Dividends. (a) The holders record owner of the outstanding Class A-1 Preferred Stock each Voting Trust Certificate shall be entitled to receivereceive his pro rata share of any dividends paid or distributed by the Company upon the Shares represented by the Voting Trust Certificates and all other corporate distributions made by the Company in respect of such Voting Shares; provided, out however, that, if any such dividend or distribution includes shares of funds legally available thereforecapital stock of the Company with voting rights, cumulative dividends the certificates representing such shares of stock shall be deposited with the Voting Trustee subject to the terms of this Agreement, and the owner of the Voting Trust Certificate evidencing the Shares upon which such dividend or distribution is made shall be entitled to receive new Voting Trust Certificates representing such newly-deposited shares of capital stock with voting rights. 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 or 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 annual rate date so fixed shall exclusively be entitled to participate in the payment or distribution. Upon receipt by the Voting Trustee of 6% per annum any dividend or other distribution in respect of any Shares held by the per share purchase price ($1.10) Voting Trustee, the Voting Trustee shall promptly distribute the funds or property so received by it to the owners of Voting Trust Certificates to whom such funds or property should have been distributed by the Class A-1 Preferred StockCompany if the foregoing provisions hereof had been observed. Such dividends 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 payable in reclassified and any shares of capital stock issued in exchange or substitution for the Company’s Class A-1 Preferred Stock quarterlyShares then on deposit hereunder shall, on if they are non-voting shares, be distributed in accordance with the fifteenth day provisions of Octoberthis Agreement directly to the record owners of outstanding Voting Trust Certificates, January, April and July (each issued in respect of such dates being a “Dividend Payment Date”) commencing on Shares; or, if they are voting shares, they shall become subject to the date terms and conditions of issuancethis Agreement as if such voting shares had been originally deposited hereunder, and shall be pro-rated for deposited with the first such quarterly period if Voting Trustee, and the same is less than 91 (ninety-one) days. All shares owner of common stock outstanding Voting Trust Certificates shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 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 bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment new Voting Trust Certificates representing such newly deposited shares of a dividend declared thereon, which record date shall be no more than sixty (60) dayscapital stock with voting rights.

Dividends. Authorize, declare or pay, directly or indirectly, any Dividends, except that the following shall be permitted: (a) The 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 the outstanding Class A-1 Preferred Stock shall be entitled to receiveHoldings held by officers, out of funds legally available thereforedirectors or employees or former officers, cumulative dividends at the annual rate of 6% per annum of the per share purchase price directors or employees ($1.10or their transferees, estates or beneficiaries under their estates) of 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 Class A-1 Preferred Stock. Such dividends aggregate cash consideration paid for all such redemptions and payments shall be payable not exceed, in shares of the Company’s Class A-1 Preferred Stock quarterlyany fiscal year, on the fifteenth day of October, January, April $50,000,000 (and July (each up to 50% of such dates being a “Dividend Payment Date”$50,000,000 not used in any fiscal year may be carried forward to the next succeeding (but no other) commencing on the date of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 fiscal year); (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter definedA) to the holders extent actually used by Holdings or Intermediate Holdco to pay such Taxes, costs and expenses, payments by the Borrower to or on behalf of Common Stock. Accrued but unpaid dividends 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 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 bear interest. “Distribution” be included in the calculation of Consolidated Fixed Charges for purposes of this section 5 means clause (III); (e) Permitted Tax Distributions and Employee Payment Distributions; (f) the transfer 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 cash such person; (g) to the extent ultimately contributed to the Borrower, 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 property without considerationindirect parent companies, whether by way in each case, to members of dividend management, directors or otherwise consultants of Holdings, the Borrower or any of their Subsidiaries; (except a dividend in shares of the Corporationh) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees 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 Transaction Documents, including (i) a conveyance, transfer or assignment of the North Yard and the West Yard to Sunoco or any employee incentive plannominee of Sunoco and (ii) the sale of the North 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, agreement or arrangement(i) including the net proceeds received by the Borrower from the sale of securities in such IPO and (ii) dividends from Available Cash on and following such consummation, provided that, in the case of this clause (ii), after giving effect to any such transferdividend, purchase Liquidity shall equal or redemption by a subsidiary exceed the greater of (x) an amount equal to 15% of the Corporation. The time then current Borrowing Base and (y) $10,000,000; (l) Dividends taking the form of any distribution by way issuance of dividend Qualified Capital Stock in the Borrower; (m) prior to, but in contemplation of an IPO, 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 Dividends), shall be replaced with an equal amount of IPO proceeds (which portion of the date IPO proceeds shall not, for the avoidance of declaration thereof and the time of any distribution by purchase or redemption of shares shall doubt, be the day cash or property is transferred by the Corporation, whether or not distributed pursuant to clause (k)(i) above); and (n) a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time distribution of the distribution is Equity Interests of PESA to an Affiliate Transferee, so long as PESA does not own any material portion of the date when Refinery, provided that, notwithstanding anything to the Corporation acquires contrary herein, Dividends permitted pursuant to any of the shares foregoing clauses shall not be included in such exchange. The Board the calculation of Directors may fix a record date for total amount of Dividends consummated pursuant to any other of the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysforegoing clauses.

Dividends. (a) 3.1. The holders of the outstanding Class A-1 Series E Preferred Stock Shares shall be entitled to receive, when, as and if authorized by the Board of Directors and declared by the Corporation out of funds legally available thereforefor that purpose, cumulative dividends payable in cash at the annual rate of 6% per annum 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 per share purchase price ($1.10) Corporation legally available for the payment of such dividends, and shall be payable monthly, when, as and if authorized and declared, in arrears on Dividend Payment Dates, commencing on the Class A-1 first Dividend Payment Date after the date such Series E Preferred StockShares are issued. Such dividends Each such dividend shall be payable in shares arrears to the holders of record of the Company’s Class A-1 Series E Preferred Stock quarterlyShares, as they appear on the fifteenth day stock records of Octoberthe Corporation at the close of business on each record date, January, April and July which shall not be more than 30 days preceding the applicable Dividend Payment Date (each of such dates being a the “Dividend Payment Record Date”) commencing on the date of issuance), and as shall be pro-rated fixed by the Board of Directors. Accrued and unpaid dividends for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall any past Dividend Periods may be valued authorized and declared and paid at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given dateany time, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the 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. Such The amount of accrued and unpaid dividends on any Series E Preferred Share at any date shall accrue on each be the amount of any dividends thereon calculated at the applicable rate to and including such share commencing on the date of issue, and shall accrue from day to daydate, whether or not earned or declared, which have not been paid in cash. 3.2. Such The amount of dividends payable for each full Dividend Period for the Series E Preferred Shares shall be cumulative so that if such computed by dividing the Annual Dividend Rate by twelve. The amount of dividends in respect payable for the initial Dividend Period, or any other period shorter or longer than a full Dividend Period, on the Series E Preferred Shares shall be computed on the basis of any previous quarterly dividend period twelve 30-day months and a 360-day year. Holders of Series 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 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 paid on, the deficiency shall be fully paid on or contemporaneously are authorized and declared and paid or authorized and declared and a sum sufficient for the payment thereof set apart for such shares before payment on the Corporation makes any distribution (as hereinafter defined) Series E Preferred Shares for all Dividend Periods prior to the holders 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 Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” Shares made for purposes of and in this section 5 means the transfer compliance with requirements of cash an employee incentive or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares benefit plan of the Corporation or shares acquired by any subsidiary or (ii) a purchase or other acquisition of Common Shares made in connection with the Corporation from employees pursuant 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 terms redemption of any employee incentive plan, agreement or arrangementshares of such stock) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 directly or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in indirectly (except by conversion into or exchange for shares Junior Shares), unless in each case the time of full cumulative dividends on all outstanding Series E Preferred Shares and any other Parity Shares shall have been paid or set apart for payment for all past Dividend Periods with respect to the distribution is the date when the Corporation acquires the shares in Series E Preferred Shares and all past dividend periods with respect to such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysParity Shares.

Dividends. (a) The holders Holders of the issued and outstanding Class A-1 shares of Preferred Stock shall be entitled to receivereceive dividends on the terms described below: (i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, out Convertible Securities or Options with respect to which adjustments to the Conversion Price shall be made in accordance with this Certificate) as if immediately prior to each Common Stock Dividend Record Date, all shares of funds legally available thereforePreferred 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 pursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, cumulative dividends at the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such and no dividends shall be payable in to holders of shares of Common Stock unless the Company’s Class A-1 full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock. (ii) In addition to any dividends pursuant to Section 4(a)(i), dividends on each share of Preferred Stock quarterlyshall accrue and accumulate on a daily basis, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends, at the Dividend Rate multiplied by the Accumulated Amount on such share from and after the Issuance Date of such share until the redemption, conversion or other cancellation thereof (the “Preferred Dividends”). At the election of the Corporation with respect to each Preferred Dividend Payment Date, all Preferred Dividends accrued on a share of Preferred Stock since the immediately preceding Preferred Dividend Payment Date (as determined in accordance with the remaining provisions of this clause (ii) and clause (iii) below) shall either (x) if, as and when so authorized and declared by the Board of Directors, be paid in cash to the holder thereof on such Preferred Dividend Payment Date (any Preferred Dividend or portion of a Preferred Dividend paid in such manner, a “Cash Dividend”), or (y) to the extent not so paid in cash in accordance with the foregoing clause (x) automatically become Compounded Dividends and added to the Accumulated Amount for such share as of such Preferred Dividend Payment Date. The amount of Preferred Dividends accruing with respect to any share of Preferred Stock for any day shall be determined by dividing (x) the Implied Quarterly Dividend Amount as of such day by (y) the actual number of days in the Payment Period in which such day falls; provided, however, that if during any Payment Period the Dividend Rate is increased, then after the date of such increase the amount of Preferred Dividends accruing with respect to any share of Preferred Stock for any day shall be determined by dividing (x) the Implied Quarterly Dividend Amount (recalculated to take into account such increased Dividend Rate) by (y) the actual number of days in such Payment Period. The amount of Preferred Dividends payable with respect to any share of Preferred Stock for any Payment Period shall equal the sum of the daily Preferred Dividends amounts calculated in accordance with the 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 (with $.005 being rounded upward). (iii) Any election by the Corporation to pay a Cash Dividend with respect to any Payment Period shall be applied consistently to all Preferred Dividends paid to all Holders with respect to such Payment Period. For the avoidance of doubt, it is understood that no Preferred Dividends may be declared and paid in securities or otherwise “in kind.” (iv) Each Participating Dividend or Preferred Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto based on the fifteenth day ownership of October, January, April and July such Preferred Stock. Each Participating Dividend or Preferred Dividend shall be payable to the Holders of Preferred Stock as they appear on the Register at the close of business on the record date designated by the Board of Directors for such dividends (each of such dates being date, a “Dividend Payment Record Date”), which (i) commencing on the date of issuancewith respect to Participating Dividends, and shall be pro-rated the same day as the record date for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares payment of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 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 shares of Common StockStock (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. (b) Upon the occurrence of a Triggering Event, the Dividend Rate shall increase to the Noncompliance Additional Rate from and including the date on which the Triggering Event shall occur and be continuing through but excluding the date on which all then occurring Triggering Events are no longer continuing. Accrued but unpaid The Dividend Rate shall not be increased further pursuant to this Section 4(b) for a subsequent Triggering Event occurring while the Noncompliance Additional Rate is in effect pursuant to this Section 4(b). (c) At any time during which a Triggering Event shall occur and be continuing, without the consent of the Holders by Majority Vote, no dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash be declared or property without considerationpaid or set apart for payment, whether by way of dividend or other distributions declared or made, upon any Junior Securities, nor shall any Junior Securities be redeemed, purchased or otherwise acquired for any consideration (except nor shall any moneys be paid to or made available for a dividend in sinking fund for the redemption of any shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 Junior Securities) by the Corporation, whether directly or not pursuant indirectly (except, subject to a contract and in accordance with the provisions of an earlier date; provided that where a negotiable debt security is issued in Section 6 hereof, by conversion into or exchange for Junior Securities or the payment of cash in lieu of fractional shares the time in connection therewith) (other than repurchases of shares of Common Stock from applicable employees, officers or directors of the distribution is Corporation, in the date when ordinary course of business, following such employees’, officers’ and directors’ termination of employment or engagement with the Corporation acquires and its Subsidiaries). Without limiting the foregoing, without the consent of the Holders by Majority Vote, the Corporation shall not (i) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases of shares of Common Stock from employees, officers or directors of the Corporation in such exchange. The Board the ordinary course of Directors may fix business) for any consideration or pay any moneys or make available for a record date sinking fund for the determination redemption of holders any shares of Class A-1 such Junior Securities, unless, in each case, the Corporation, in its good faith judgment, reasonably determines that (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including, for this purpose, the aggregate Accumulated Amount and the aggregate Interim Accrued Dividends of the Preferred Stock entitled Stock), (B) immediately after the taking of such action, the Corporation would be able to receive payment pay all of a dividend declared thereonits debts (including, which record date shall be no more than sixty for this purpose, the aggregate Accumulated Amount and the aggregate Interim Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (60C) dayssuch action is otherwise in compliance with applicable Law.

Dividends. (a) 3.1. The holders of the outstanding Class A-1 Series D Preferred Stock Shares shall be entitled to receive, when, as and if authorized by the Board of Directors and declared by the Corporation out of funds legally available thereforefor that purpose, cumulative dividends payable in cash at the annual rate of 6% per annum 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 per share purchase price ($1.10) Corporation legally available for the payment of such dividends, and shall be payable monthly, when, as and if authorized and declared, in arrears on Dividend Payment Dates, commencing on the Class A-1 Preferred Stockfirst Dividend Payment Date after the Issue Date. Such dividends Each such dividend shall be payable in shares arrears to the holders of record of the Company’s Class A-1 Series D Preferred Stock quarterlyShares, as they appear on the fifteenth day stock records of Octoberthe Corporation at the close of business on each record date, January, April and July which shall not be more than 30 days preceding the applicable Dividend Payment Date (each of such dates being a the “Dividend Payment Record Date”) commencing on the date of issuance), and as shall be pro-rated fixed by the Board of Directors. Accrued and unpaid dividends for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall any past Dividend Periods may be valued authorized and declared and paid at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given dateany time, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the 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. Such The amount of accrued and unpaid dividends on any Series D Preferred Share at any date shall accrue on each be the amount of any dividends thereon calculated at the applicable rate to and including such share commencing on the date of issue, and shall accrue from day to daydate, whether or not earned or declared, which have not been paid in cash. 3.2. Such The amount of dividends payable for each full Dividend Period for the Series D Preferred Shares shall be cumulative so that if such computed by dividing the Annual Dividend Rate by twelve. The amount of dividends in respect payable for the initial Dividend Period, or any other period shorter or longer than a full Dividend Period, on the Series D Preferred Shares shall be computed on the basis of any previous quarterly dividend period twelve 30-day months and a 360-day year. Holders of Series 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 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 paid on, the deficiency shall be fully paid on or contemporaneously are authorized and declared and paid or authorized and declared and a sum sufficient for the payment thereof set apart for such shares before payment on the Corporation makes any distribution (as hereinafter defined) Series D Preferred Shares for all Dividend Periods prior to the holders 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 Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” Shares made for purposes of and in this section 5 means the transfer compliance with requirements of cash an employee incentive or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares benefit plan of the Corporation or shares acquired by any subsidiary or (ii) a purchase or other acquisition of Common Shares made in connection with the Corporation from employees pursuant 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 terms redemption of any employee incentive plan, agreement or arrangementshares of such stock) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 directly or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in indirectly (except by conversion into or exchange for shares Junior Shares), unless in each case the time of full cumulative dividends on all outstanding Series D Preferred Shares and any other Parity Shares shall have been paid or set apart for payment for all past Dividend Periods with respect to the distribution is the date when the Corporation acquires the shares in Series D Preferred Shares and all past dividend periods with respect to such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysParity Shares.

Dividends. (a) The holders of shares of the outstanding Class A-1 Series A Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors, out of funds of the Company legally available thereforetherefor, cumulative cash dividends at the annual rate described in Section 3(b). To the extent declared by the Board of 6% per annum Directors, dividends will be payable quarterly on the 15th day of the per share purchase price ($1.10) first month of each calendar quarter in San Francisco, California, or if not a Business Day in San Francisco, California, the Class A-1 Preferred Stock. Such dividends shall be payable next succeeding Business Day in shares San Francisco, California, and in the case of any accrued but unpaid dividends, at such additional times, if any, as determined by the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day Board of October, January, April and July Directors (each of such dates being 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 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. No less than five (5) commencing 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 the amount of the dividend payment for each of the Series A-1 Cumulative Redeemable Preferred Stock and the Series A-2 Cumulative Redeemable Preferred Stock. Dividends on the Series A-1 Cumulative Redeemable Preferred Stock will accrue and be cumulative from and including 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average issuance of the closing bid prices for Series A-1 Preferred Stock (the Company’s common stock for “Series A-1 Original Issue Date”) and Dividends on the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall Series A-2 Cumulative Redeemable Preferred Stock will accrue on each such share commencing on and be cumulative from and including the date of issueissuance of the Series A-2 Preferred Stock (the “Series A-2 Original Issue Date”). The term “Original Issue Date” when used with respect to the Series A-1 Cumulative Redeemable Preferred stock shall mean the Series A-1 Original Issue Date, and when used with respect to the Series A-2 Cumulative Redeemable Preferred Stock shall accrue from day to day, whether or not earned or declaredmean the Series A-2 Original Issue Date. Such dividends shall be cumulative so that if such dividends in respect of any previous quarterly dividend period shall not have been paid onHowever, the deficiency shall Board of Directors will not be fully paid on or declared required to declare dividends, 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 the Series A Preferred Stock will not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant be entitled to the terms require payment of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysdividend.

Dividends. (a) The holders Holders of the outstanding Class A-1 Series [B] Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors or a duly authorized committee of the Board of Directors, out of funds or property legally available thereforetherefor under Delaware law, non-cumulative dividends at and distributions, if any, in the annual rate of 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% per annum of , Holders shall not be entitled to any other dividends or distributions on the per share purchase price ($1.10) of the Class A-1 Series [B] Preferred Stock. Such Notwithstanding anything herein to the contrary, (i) dividends and distributions on the Series [B] Preferred Stock shall not be cumulative; (ii) Holders of Series [B] Preferred Stock shall not be entitled to receive any dividends or distributions not declared by the Board of Directors or a duly authorized committee of the Board of Directors; and (iii) no interest, or sum of money in lieu of interest, shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 or distribution not have been paid onso declared. (b) If 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, of cash, securities (including, without limitation, rights, warrants, options or evidences of indebtedness) or other property or assets (in each case excluding Non-Partial Common Stock Distributions and 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 deficiency shall be fully “Distributed Property,” and the date such Distributed Property is paid on or declared to holders of Common Stock pursuant to such Common Stock Distribution, the “Common Stock Distribution Date,” and set apart the record date for such shares before the Corporation makes any distribution (as hereinafter defined) to determining the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment 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 be the Common 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 declared thereon, which record date 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 more than sixty (60) daysCommon Stock Distribution whose Common Stock Distribution Date occurs during such calendar quarter or period, as applicable.

Dividends. (a) The holders of the outstanding Class A-1 shares of Series A Preferred Stock shall be entitled to receivereceive cumulative dividends, out of funds legally available thereforetherefor, cumulative dividends at the annual a rate of 6% nine percent (9%) per annum annum, before any dividend or distribution in cash or other property on common stock or any class or series of stock of the per share purchase price 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. ($1.10b) of the Class A-1 Dividends on Series A Preferred Stock. Such dividends shall be payable in shares on March 31, June 30, September 30 and December 31 of the Company’s Class A-1 Preferred Stock quarterlyeach year through December 31, on the fifteenth day of October, January, April and July 2013 (each of such dates date being hereinafter individually a “Dividend Payment Date”), except that if such date is a Saturday, Sunday or legal holiday then such dividend shall be payable on the first immediately preceding calendar day which is not a Saturday, Sunday or legal holiday, to holders of record as they appear on the books of the Corporation on such respective dates, not exceeding sixty (60) commencing days preceding such Dividend Payment Date, as may be determined by the Board of Directors in advance of the payment of each particular dividend. Dividends in arrears may be declared and paid at any time, without reference to any regular Dividend Payment Date, to holders of record on such date 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 less than a full quarterly period shall be computed and prorated on the basis of a 360-day year of twelve 30-day months. (c) If the Corporation is unable to pay a dividend on a Dividend Payment Date, the dividend shall be cumulative and shall accrue from and after the date of issuanceoriginal 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 respect of any dividend period unless there shall also be or have been declared and paid on Series A Preferred accrued, unpaid dividends for all quarterly periods coinciding with or ending before such quarterly period, ratably in proportion to the respective annual dividend rates fixed therefor. (e) Dividends on Series A Preferred shall be propaid 50% in cash and 50% in shares of fully-rated for paid and nonassessable common stock of the first such quarterly period 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 same common stock is less than 91 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 traded in the over-the-counter market, the closing bid price, in each case averaged over a period of ninety (ninety90) consecutive trading days prior to the date as of which “market price” is being determined, (ii) if the common stock is not traded on an exchange or the NASDAQ Stock Market, or otherwise traded in the over-onethe-counter market, the higher of (A) days. All shares the book value thereof as determined by any firm of 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 fair value thereof determined in good faith by the Board of Directors of the Corporation as of a 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 valued paid in cash at the Fair Market Value thereof. As used herein Fair Market Value shall mean dividend rate set forth in the case of stock on 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 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 bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysSection 3(a).

Dividends. (a) The holders Holders of the outstanding Class A-1 Preferred Stock MRP Shares shall be entitled to receivereceive quarterly cumulative cash dividends, when, as and if authorized by the Board of Directors and declared by the Company, out of funds legally available thereforetherefor, cumulative dividends at the annual rate of 6% per annum of equal to the per share purchase price Applicable Rate ($1.10or the Default Rate), and no more, payable on the respective dates determined as set forth in paragraph (b) of this Section 2. Dividends on Outstanding MRP Shares shall accumulate from the Class A-1 Preferred Stock. Such dividends Original Issue Date. (i) Dividends shall be payable in shares quarterly when, as and if authorized by the Board of Directors and declared by the Company’s Class A-1 Preferred Stock quarterly, Company beginning on the fifteenth day of October, January, April and July (each of such dates being a “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 shall pay an aggregate amount of federal funds or similar same-day funds, equal to the dividends to be paid to all Holders of such shares on such Dividend Payment Date 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 paid on the Dividend Payment Date therefor to the Holders as their names appear on the share ledger or share records of the Company 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 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. No interest will be payable in respect of any 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”) commencing 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 equal to one of the ratings set forth in 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 date MRP Shares. If, notwithstanding the foregoing requirements of issuancethis Section 2(c)(i), and 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 pro-rated for equal to the first such quarterly period 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 same is less than 91 (ninety-one) days. All shares Company either fails to pay directly in accordance with Section 14 of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean Securities Purchase Agreement or, in the case of stock 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 dividend payable on 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 (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”). Such 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 accrue 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 share commencing 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 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 dividend or distribution paid in shares of, or options, warrants or rights to subscribe for or purchase, Common Shares or other shares of 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 issuethe transaction have been declared and paid, and shall accrue from day (3) the Company has redeemed the full number of MRP Shares required to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends redeemed by any provision for mandatory redemption contained in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution Section 3(a) (as hereinafter defined) without regard to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares provisions of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysSpecial Proviso).

Dividends. (a) The holders Beginning on the applicable Issue Date, the Holders of the outstanding Class A-1 shares of Convertible Preferred Stock being issued on such Issue Date shall be entitled to receive, when, as, and if declared by the Special Committee, out of funds legally available thereforetherefor, cumulative cash dividends on each share of Convertible Preferred Stock, at the annual rate (the "Dividend Rate") of 610 3/8% per annum multiplied by the then-effective liquidation preference per share of the per share purchase price ($1.10) of the Class A-1 SECOND AMENDED AND RESTATED ARTICLES OF INCORPORATION OF KEVCO, INC.-PAGE 6 204 Convertible Preferred Stock. Such Additional dividends, at the Dividend Rate, shall accrue in respect of, and compound on, any dividends which are in arrears. All dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 daycumulative, whether or not earned or declared. Such dividends , from the Issue Date and shall compound to the extent not paid on the next succeeding Dividend Payment Date, and shall be cumulative so that if payable quarterly in arrears on each Dividend Payment Date, commencing on the first Dividend Payment Date after the applicable Issue Date. At the option of the corporation as determined by the Special Committee, any dividend payable on any Dividend Payment Date may be declared and paid wholly or partially "in kind" in lieu of cash, by issuing whole shares of Series B Nonvoting Preferred Stock on such dividends Dividend Payment Date with an aggregate liquidation preference in respect an amount equal to the aggregate cash dividend cumulated and unpaid to such date (or any portion thereof) with cash paid in lieu of issuing fractional shares. The amount of any previous quarterly dividend period shall dividends payable on any Dividend Payment Date not have been declared or paid on, the 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 bear interest. “Distribution” in this section 5 means the transfer of full in cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption issuance of shares of Series B Nonvoting Preferred Stock shall be added to the Corporation for cash or property (except for an exchange of shares liquidation preference of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any Convertible Preferred Stock on such transfer, purchase or redemption by a subsidiary of the Corporationdate. The time of any distribution by way of Each dividend shall be payable to Holders of record as they appear on 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 exchange for shares the time stock books of the distribution is corporation on the date when Dividend Record Date immediately preceding the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysrelated Dividend Payment Date.

Dividends. (a) The holders of No dividends or other distributions declared after the outstanding Class A-1 Preferred Effective Time on AFC Common Stock shall be entitled paid with respect to receive, out of funds legally available therefore, cumulative dividends at the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in any shares of AFC Common Stock represented by an APY Stock Certificate until such APY Stock Certificate is surrendered for exchange according to the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being 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) daysprocedures described above. All No fractional shares of common stock shall AFC Common Stock will be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 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 bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees issued pursuant to the terms Merger. In lieu of the issuance of any employee incentive planfractional shares of AFC Common Stock, agreement or arrangement) including any cash will be paid to holders of such transfer, purchase or redemption by a subsidiary fractional share in the amount of the Corporation. The time product of any distribution by way of dividend shall be 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 such fractional share multiplied by the Corporation, whether or not pursuant Average Stock Price. THE RECAPITALIZATION APY is currently authorized to a contract issue only one class of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchangeAPY Common Stock. The Board of Directors may fix of APY has approved, and SMA, the holder of more than a record date majority of the 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 Merger, 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 remain outstanding after the determination Merger. See "The Charter Amendment" and "Appendix A-2--Form of holders 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 Merger Agreement and related agreements; (iii) authorized capital stock; (iv) ownership of Class A-1 Preferred Stock entitled to receive subsidiaries; (v) the lack 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; (vii) compliance with law and contract; (viii) the filing of certain documents with the Commission; (ix) the accuracy of financial statements; (x) the absence of certain litigation; (xi) the absence of certain changes including those having a material adverse effect, the payment of dividends other than regular quarterly cash dividends and a dividend declared thereonchange in accounting policy; (xii) the receipt of fairness opinions; and (xiii) the lack of any contract or agreement obligating the payment of finder's fees, which record date shall be brokerage or agent's commissions, other than agreements with Salomon Brothers and ▇▇▇▇▇▇▇ ▇▇▇▇▇. In addition, AFC represents that (i) immediately following the Effective Time, it will have available funds to satisfy the cash portion of the Merger Consideration; and (ii) to its knowledge, no more than sixty (60) days.event has occurred or condition exists in connection with the Merger that would cause it to fail to satisfy any material applicable statute or written regulation. CERTAIN COVENANTS Conduct of Business Pending the Reorganization. Pursuant to the Merger Agreement, AFC and APY have made various customary covenants relating to the Merger Transactions. APY has agreed that, prior to the 47

Dividends. (a) The holders of the outstanding Class A-1 Series D-1 Preferred Stock Shares shall be entitled to receive, when and as declared by the Board of Directors, out of funds legally available thereforefor the payment of dividends, cumulative dividends per Series D-1 Preferred Share payable in cash at the annual rate of 6% per annum of applicable Annual Dividend Rate; provided, however, that if any dividend payable on any Dividend Payment Date is not paid in full in cash on such Dividend Payment Date, the per share purchase price ($1.10) of amount payable as dividends on such Dividend Payment Date that is not paid in cash on such Dividend Payment Date shall automatically, without any further action by the Class A-1 Preferred StockCorporation, be added to the Liquidation Preference on the relevant Dividend Payment Date at the Annual Dividend Rate applicable with respect to dividends not paid in cash. Such dividends Each such dividend payable in cash shall be payable in shares arrears to the holders of record of the Company’s Class A-1 Series D-1 Preferred Stock quarterlyShares, as they appear on the fifteenth day stock records of Octoberthe Corporation at the close of business on each record date, January, April and July which shall not be more than 30 days preceding the applicable Dividend Payment Date (each of such dates being a the “Dividend Payment Record Date”) commencing on the date of issuance), and as shall be pro-rated for fixed by the first such quarterly period if the same is less than 91 (ninety-one) daysBoard of Directors. All shares The amount of common stock accrued and unpaid dividends on any Series D-1 Preferred Stock at any date shall be valued the amount of any dividends thereon, calculated at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given applicable Annual Dividend Rate, to and including such 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 , which have not been paid; provided that an amount equal to any dividend that was not paid in cash on any applicable Dividend Payment Date shall be cumulative added to the Liquidation Preference in accordance with this Section 3(a) and such dividend not paid in cash and so that if such dividends in respect of any previous quarterly dividend period 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 shorter or longer than a full 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. Holders of Series D-1 Preferred Shares shall not be entitled to any dividends, whether payable in cash, property or stock, in excess of the dividends on the Series D-1 Preferred Shares as herein provided. (c) All dividends paid 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 paid on, the deficiency shall be fully paid on 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 shares before payment on the Corporation makes any distribution (as hereinafter defined) Series D-1 Preferred Shares for the immediately preceding Dividend Period and on the Parity Shares for the immediately preceding dividend period applicable to the holders 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 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 authorized and declared ratably in proportion to the respective amounts of dividends accrued and unpaid on the Series D-1 Preferred Shares and such class or classes or series of Parity Shares. (e) 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 Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” Shares made for purposes of and in this section 5 means the transfer compliance with requirements of cash an employee incentive or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares benefit plan of the Corporation or shares acquired by any subsidiary) for any consideration (or any moneys to be paid to or made available for a sinking fund for the Corporation from employees pursuant to the terms redemption of any employee incentive plan, agreement or arrangementshares of such stock) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 directly or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in indirectly (except by conversion or exercise into or exchange for shares Junior Shares), unless in each case the time of the distribution is the date when the Corporation acquires the shares full accrued and unpaid dividends on all outstanding Series D-1 Preferred Shares shall have been paid in such exchange. The Board of Directors may fix a record date cash and on any other Parity Shares shall have been previously paid for the determination immediately preceding Dividend Period and the immediately preceding dividend period applicable to the Parity Shares. (f) In any case where any Dividend Payment Date shall not be a Business Day, then (notwithstanding any other provision of holders this Certificate of Class A-1 Preferred Stock entitled to receive Designation) payment of a dividend declared thereondividends need not be made on such date, which record 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 be no more than sixty (60) daysaccrue on such amount of dividends for the period from and after such Dividend Payment Date.

Dividends. (a) The holders of the outstanding Class A-1 shares of Series A Preferred Stock shall be entitled to receivereceive with respect to each share of Series A Preferred Stock, when, as and if declared by the Board of Directors, out of funds legally available thereforefor the payment of dividends, cumulative dividends at the annual a rate of 6% per annum of the per share purchase price equal to two percent ($1.102%) of the Class A-1 then effective Liquidation Preference per share, payable in (A) cash, (B) additional shares of Series A Preferred Stock. Such Stock (ADDITIONAL SHARES) or (C) any combination of the foregoing in accordance with the terms of this paragraph 4; provided, however, that dividends shall 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 the Company’s Class A-1 Series A Preferred Stock quarterly, on the fifteenth day of October, January, April remain authorized and July (each of such dates being a “Dividend Payment Date”) commencing on the date of available for 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 from the Issue Date regardless of when actually issued (except that if 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 for the payment of such dividends and whether or not dividends are declared, and shall be payable on April 21 of each year (unless such day is not a Business Day, in which event such dividends shall be payable on the next succeeding Business Day) (each such date being a DIVIDEND PAYMENT DATE and each such annual period being a DIVIDEND PERIOD). Each such dividend shall be payable to the holders of record of shares of the Series A Preferred Stock as 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, to holders of record on such record date, not more than 45 days preceding the payment date thereof, as may be fixed by the Board of Directors. Dividends shall accumulate to the extent that they are not paid on the Dividend 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 previous quarterly dividend period payment or payments on the Series A Preferred Stock that may be in arrears; provided that if dividends are not paid in full on any Dividend Payment Date, the amount so payable, to the extent not paid, shall not be added to the then effective Liquidation Preference on such Dividend Payment Date. (c) So long as any shares of the Series A Preferred Stock are outstanding, no dividend, except as described in the next succeeding sentence, shall be 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 each case full cumulative dividends have been or contemporaneously are declared and paid on, the deficiency shall be fully paid on or declared and consideration sufficient for the payment thereof set apart for such shares before payment on the Corporation makes any distribution (as hereinafter defined) Series A Preferred Stock for all Dividend Periods terminating on or prior to the holders date of Common Stockpayment of the dividend on such class or series of Parity Securities or the redemption, purchase or other acquisition thereof. Accrued but unpaid When dividends shall are not bear interest. “Distribution” paid in this section 5 means the transfer of cash full or property without considerationconsideration sufficient for such payment is not set apart, whether by way of dividend or otherwise (except a dividend in as aforesaid, all dividends declared upon shares of the CorporationSeries A Preferred Stock and all dividends declared upon any other class or series of Parity Securities shall be declared ratably in proportion to the respective amounts of dividends accumulated and unpaid on the Series A Preferred Stock and accumulated and unpaid on such Parity Securities. (d) So long as any shares of the Series A Preferred Stock are outstanding, no dividends (other than dividends or the distributions paid in shares of, or to effectuate a stock split on, or options, warrants or rights to subscribe for or purchase shares of, Junior Securities) 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 (other than a redemption, purchase or redemption other acquisition of shares of the Corporation Common Stock made for cash purposes of an employee incentive or property (except for an exchange of shares benefit plan of the Corporation or shares acquired by 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 Corporation from employees pursuant to the terms redemption of any employee incentive plan, agreement or arrangement) including shares of any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 stock) by the Corporation, whether directly or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in indirectly (except by conversion into or exchange for Junior Securities), unless in each case (i) the full cumulative dividends on all outstanding shares the time of the distribution is Series A Preferred Stock and accrued and unpaid dividends on any other Parity Securities shall have been paid or set apart for payment for all past Dividend Periods with respect to the date when the Corporation acquires the shares in Series A Preferred Stock and all past dividend periods with respect to such exchange. The Board of Directors may fix a record date Parity Securities and (ii) sufficient consideration shall have been paid or set apart for the determination payment of holders of Class A-1 the dividend for the current Dividend Period with respect to the Series A Preferred Stock entitled and the current dividend period with respect to receive payment such Parity Securities. (e) The number of a Additional Shares to be issued as dividends in lieu of cash will equal the quotient of (X) the cash amount of the dividend declared thereon, which record date shall be no more than sixty that otherwise would have been payable in cash and (60Y) daysthe then effective Liquidation Preference per share.

Dividends. (a) The holders Holders as of 12:00 noon, New York City time, on the outstanding Class A-1 Preferred Stock applicable Dividend Payment Date, shall be entitled to receive, when, as and if declared by the Board of Trustees, out of funds legally available thereforetherefor, cumulative dividends dividends, at the annual rate Applicable Dividend Rate. Dividends on the shares of 6% per annum 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 per share purchase price ($1.10) alternative minimum tax provisions of the Class A-1 Preferred StockCode. Such 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 in on the applicable Dividend Payment Date to the Holder or Holders of such shares of the Company’s Class A-1 Preferred Stock quarterlyRP as set forth in paragraph 3(a). Dividends on any share of RP in arrears with respect to any past Dividend Payment Date may be declared and paid at any time, on the fifteenth day of October, January, April and July (each of such dates being a “without reference to any regular Dividend Payment Date”) commencing on , to the Holder of such share as of a date not exceeding five Business Days preceding the date of issuance, and payment thereof as may be fixed by the Board of Trustees. Any dividend payment made on any share of RP shall be pro-rated for first credited against the first such quarterly period if the same is less than 91 dividends accumulated but unpaid (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 ) 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 so 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 if such results from implementation of 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 previous quarterly dividend period shall not have been paid on, the deficiency Dividend Period 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 bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired computed by the Corporation from employees pursuant Trust by multiplying the Applicable Dividend Rate in effect with respect to the terms of any employee incentive plan, agreement or arrangement) including any dividends payable on such transfer, purchase or redemption share on such Dividend Payment Date by a subsidiary fraction the numerator of the Corporation. The time of any distribution by way of dividend which shall be the date number of declaration thereof 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 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 Trust shall deposit in same-day funds with the Paying Agent the full amount of any distribution by purchase dividend declared and payable on such Dividend Payment Date on any share of RP. (h) The Applicable Dividend Rate for each Dividend Period commencing during a Non-Payment Period shall be equal to the Non-Payment Period Rate; any share of RP for which an Optional Dividend Period or a Special Dividend Period would otherwise have commenced on the first 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 for any shares of RP (if, prior to 12:00 noon, New York City time, on such Dividend Payment Date, the Trust has declared such dividend payable on or within three Business Days after such Dividend Payment Date to the Holders of such shares of RP as of 12:00 noon, New York City time, on the Business Day preceding such Dividend Payment Date) or redemption price with respect to any shares of shares RP not paid to such Holders when due but paid to such Holders in the same form of funds by 12:00 noon, New York City time, on any of the first three Business Days after such Dividend Payment Date or due date, as the case may be, shall incur a late charge to be paid therewith to such Holders and calculated for such period of non-payment at the Non-Payment Period Rate applied to the amount of such non-payment based on the actual number of days comprising such period divided by 365. 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 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 cash Dividend Period or property is transferred by (b) the Corporation, whether or not pursuant Remarketing Agents are unable to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares remarket in such exchange. The 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 Directors may fix Trustees has designated the next succeeding Dividend Period with respect to such share as a record date for 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 determination 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 holders RP tendered (or deemed tendered) to them at a price of Class A-1 Preferred Stock entitled to receive payment $100,000 per share, then the next succeeding Dividend Period in respect of a dividend declared thereon, which record date such share shall be no more than sixty (60) days.a 7-day Dividend Period, and the Applicable Dividend Rate

Dividends. (a) The holders of It is agreed that (i) the outstanding Class A-1 Preferred Stock Parties shall be entitled take such actions as are necessary to receive, out of funds legally available therefore, cumulative dividends at ensure that the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 timing of any previous regular quarterly dividend period shall not have been paid onto common stockholders or shareholders by either Company or Parent prior to the Closing will be coordinated so that, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to 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 calendar quarter prior to the Closing Date and (ii) the 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 Company and the common shareholders of Parent receive the same number of such dividends prior to the 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. Accrued but unpaid dividends shall not bear interest. “Distribution” Notwithstanding anything to the contrary contained herein, in this section 5 means the transfer of cash event Company declares a Permitted REIT Dividend other than a Permitted REIT Dividend necessitated by action or property without consideration, whether actions requested by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees Parent pursuant to Section 7.17, the terms Exchange Ratio will be ratably adjusted to the extent necessary or appropriate to reflect fully the effect of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of change resulting from the CorporationPermitted REIT Dividend. The time of record date and payment date for any distribution Permitted REIT Dividend payable by way of dividend Company or any Company Subsidiary shall be the close of business on the last Business Day prior to the Closing Date. (c) If Parent or any Parent Subsidiary, in consultation with Company, determines that it is necessary to declare a Permitted REIT Dividend, Parent shall notify Company at least twenty (20) days prior to the anticipated Closing Date. Notwithstanding anything to the contrary contained herein, in the event Parent declares a Permitted REIT Dividend, 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 of declaration thereof and the time of payment date for any distribution Permitted REIT Dividend payable by purchase Parent or redemption of shares any Parent Subsidiary shall be the day cash or property is transferred by close of business on the Corporation, whether or not pursuant last Business Day prior to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysClosing Date.

Dividends. (a) The holders holder of the outstanding Class A-1 Preferred Stock each voting trust certificate shall be entitled to receivereceive payments equal to the cash dividends, out if any, received by the Trustee prior to the termination of funds legally available therefore, cumulative dividends at this Agreement upon the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of Company Stock beneficially represented by each such voting trust certificate, such payment to be made by the Company’s Class A-1 Preferred Stock quarterly, on Trustee to the fifteenth day of October, January, April and July (each person or persons entitled thereto within three business days after receipt of such dates being a “Dividend Payment Date”cash dividend by the Trustee unless and except to the extent that the Trustee has given the Company the instructions contemplated by Section 7(d) 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) dayshereof. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 If any dividend in respect of any previous quarterly dividend period shall not have been paid onthe Company Stock deposited with the Trustee is paid, in whole or in part, in capital stock of the Company having general voting powers, in a transaction nontaxable to the recipient, the deficiency Trustee 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 bear interest. “Distribution” in this section 5 means the transfer of cash or property without considerationlikewise hold, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant subject to the terms of any employee incentive planthis Agreement, agreement or arrangement) including any the capital stock so received by the Trustee on account of such transferdividend (which shall thereupon also be deemed to be "Company Stock"), purchase or redemption and the holder of each voting trust certificate beneficially representing Company Stock on which such stock dividend has been paid shall receive an additional voting trust certificate issued under this Agreement for the number of shares and class of stock received by a subsidiary the Trustee as such dividend with respect to the Company Stock beneficially represented by such holder's voting trust certificate. Holders entitled to receive the dividends described above shall be those registered as such on the transfer books of the Corporation. The time Trustee at the close of any distribution business on day fixed by way the Company for the taking of dividend shall be a record to determine those holders of its stock entitled to receive such dividends, or if the Trustee has fixed a date, as hereinafter in this paragraph provided, for the purpose of determining the holders of voting trust certificates entitled to receive such payment or distribution, then registered as such at the close of business on 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 so fixed by the CorporationTrustee, whether or not pursuant but in all events subject to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time applicable law. (c) The transfer books of the distribution is Trustee may be closed temporarily by the Trustee for a period not exceeding 20 days preceding the date when fixed for the Corporation acquires payment or distribution of dividends or the shares distribution of assets or rights, or any other time in such exchangethe discretion of the Trustee. The Board In lieu of Directors providing for the closing of the books against the transfer of voting trust certificates, and except as may otherwise be provided by applicable law, the Trustee may fix a date not exceeding 20 days preceding any date fixed by the Company for the payment or distribution of dividends, or for the distribution of assets or rights, as a record date for the determination of the holders of Class A-1 Preferred Stock voting trust certificates entitled to receive such payment or distribution, and the holders of a dividend declared thereon, which voting trust certificates of record at the close of business on such date shall exclusively be no more than sixty entitled to participate in such payments or distribution, but in all events subject to applicable law. (60d) daysIn lieu of receiving cash dividends upon Company Stock and paying the same to the holders of voting trust certificates pursuant to the provisions of this Agreement, the Trustee may instruct the Company in writing to pay such dividends to the holders of the voting trust certificates. Upon receipt of such written instructions, the Company shall pay such dividends directly to the holders of the voting trust certificates as their interests may appear. Upon such instructions being given by the Trustee to the Company, and until revoked by the Trustee, all liability of the Trustee with respect to such dividends shall cease. The Trustee may at any time revoke such instructions and by written notice to the Company direct it to make dividend payments to the Trustee.

Dividends. (a) The holders Holders of the outstanding Class A-1 shares of Series A Preferred Stock shall be entitled to receivecumulative 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 funds the assets of the Company legally available thereforetherefor, cumulative dividends at the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends and shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, semiannually commencing on the fifteenth 180th day of October, January, April and July following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each of such dates 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 date of issuancepreceding Dividend Payment Date (or, and shall be pro-rated for the first such quarterly period if the same there is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given dateno preceding Dividend Payment Date, the average of Issue Date) and ending on the closing bid prices for day immediately prior to the Company’s common stock for the ten trading days immediately preceding the next Dividend Payment Date. Such 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 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 payable in respect of shares initially issued to any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared Holder who is contractually obligated to appear and set apart for such shares before the Corporation makes vote in favor of any distribution (as hereinafter defined) to the holders proposal made at a meeting of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares stockholders of the CorporationCompany in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the purchase or redemption Affiliates of either) fails so to appear and vote in favor. Any shares of issued to such Holders shall bear the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysStockholder Approval Legend.

Dividends. Cinergy shall not, nor shall it permit any of its subsidiaries to, (ai) The holders of the outstanding Class A-1 Preferred Stock shall be entitled to receivedeclare, out of funds legally available therefore, cumulative set aside or pay any dividends at the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 make other distributions in respect of any previous of its capital stock or share capital, except: (A) that Cinergy may continue the declaration and payment of regular quarterly cash dividends on Cinergy Common Stock, not to exceed $0.48 per share, with usual record and payment dates for such dividends in accordance with past dividend practice; provided, that if the Cinergy Effective Time does not occur between a record date and payment date of a regular quarterly dividend, a special dividend may be declared and paid in respect of Cinergy Common Stock with respect to the quarter in which the Cinergy Effective Time occurs with a record date in such quarter and on or prior to the date on which the Cinergy Effective Time occurs, which dividend does not exceed an amount equal to the product of (i) a fraction the (x) numerator of which is equal to the number of days between the last payment date of a regular quarterly dividend period shall not have been paid onand the record date of such special dividend (excluding such last payment date but including the record date of such special dividend) and (y) the denominator of which is equal to the number of days between the last payment date of a regular quarterly dividend and the same calendar day in the third month after the month in which such last payment date occurred (excluding such last payment date but including such same calendar day), multiplied by (ii) the deficiency shall then permitted quarterly dividend per share, and (B) for the declaration and payment of dividends by a direct or indirect wholly-owned subsidiary solely to its parent, or by a direct or indirect partially owned subsidiary of Cinergy (provided that Cinergy or the Cinergy subsidiary receives or is to receive its proportionate share of such dividend or distribution), and (C) for the declaration and payment of regular cash dividends with respect to preferred stock of Cinergy's subsidiaries outstanding as of the date of the Agreement or permitted to be fully paid on or declared and set apart for such shares before issued under the Corporation makes any distribution terms of this Agreement, and (as hereinafter definedD) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” extent advisable in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares exercise of the Corporation) or the purchase or redemption of shares fiduciary duties of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date of Cinergy, for the determination of holders of Class A-1 Preferred Stock entitled to receive declaration and payment of a customary share purchase rights plan, provided, that, (1) Cinergy shall provide Duke prior notice of any such declaration or payment and (2) in connection with any such declaration or payment, the Board of Directors of Cinergy and Cinergy shall cause (x) this Agreement and the transactions contemplated hereby to not result in a "Distribution Date" (as such term may be defined in any such share purchase rights plan) or similar event under such share purchase rights plan and (y) any such share purchase rights plan to be inapplicable in all respects to this Agreement, the Duke Merger, the Cinergy Merger and the other transactions contemplated hereby; and (ii) split, combine, reclassify or take similar action with respect to any of its capital stock or share capital or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or comprised in its share capital, (iii) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or other reorganization, or (iv) except as disclosed in Section 4.01(c)(iv) of the Cinergy Disclosure Letter, directly or indirectly redeem, repurchase or otherwise acquire any shares of its capital stock or any Option with respect thereto except: (A) in connection with intercompany purchases of capital stock or share capital, or (B) for the purpose of funding the Cinergy Employee Stock Option Plans or employee stock ownership or dividend declared thereonreinvestment and stock purchase plans, which record date shall be no more than sixty or (60C) daysmandatory repurchases or redemptions of preferred stock of Cinergy's subsidiaries in accordance with the terms thereof.

Dividends. (a) The holders As part of the outstanding Class A-1 Preferred Stock Acquisition, the boards of 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 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 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 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 ▇▇▇▇▇ 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 Additional Dividend is not conditional upon the Effective Date occurring. Keysight and Spirent have agreed that the Spirent Board may declare and pay the Permitted Dividend and the Additional Dividend without any reduction in the Acquisition Price. If, on 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 Permitted Dividend and/or the Additional Dividend), Keysight reserves the right to reduce the Acquisition Price payable under the terms of the Acquisition for the Spirent Shares by an amount equal to the amount of any such dividend, distribution or other return of capital. In such circumstances, the Spirent Shareholders shall be entitled to receive, out of funds legally available therefore, cumulative dividends at the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 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 bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including retain any such transferdividend, purchase distribution, or redemption by a subsidiary other return of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase value declared, made, 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) dayspaid.

Dividends. (a) 10.4.1 The holders Borrower shall not and shall procure that no other member of the outstanding Class A-1 Preferred Stock shall be entitled NCLC Group shall, pay any dividends or make any other distributions in respect of its share capital to receiveany person, out of funds legally available therefore, cumulative dividends at the annual rate of 6% per annum provided that (i) subsidiaries of the per share purchase price ($1.10) Borrower may pay dividends to another member of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of NCLC Group; (ii) the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 Borrower may pay dividends in respect of tax liability to each relevant jurisdiction in respect of tax returns for each relevant jurisdiction of the NCLC Group or holder of the Borrower’s capital stock with respect to income taxable as a result of any previous quarterly member of the NCLC Group being treated as a pass-through entity or attributable to any member of the NCLC Group and (iii) after the later of (x) the listing of the ordinary capital stock of the Borrower or parent company of the Borrower on an Approved Stock Exchange and (y) an amount equal to the Total Delayed Principal Amount having been cancelled and/or prepaid and/or repaid, dividends may be paid in an amount not to exceed [*] of the Consolidated Net Income of the Borrower and its subsidiaries for the period commencing on 1 January 2010 and ending on the date prior to such payment for which accounts are available, so long as (I) at the time of the payment of such dividend, no Event of Default has occurred and is continuing or would result from the payment of such dividend period shall not and (II) after giving effect to such dividend the ratio of Total Net Funded Debt to Consolidated EBITDA for the four (4) consecutive financial quarters last ended for which accounts have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) provided to the holders Agent pursuant to Clause 10.2 is less than [*]. The Agent shall use the Application of Common Stock. Accrued but unpaid Proceeds Formulation to determine whether an amount equal to the relevant Maximum Amount of the Delayed Principal Amount has been cancelled and/or prepaid and/or repaid. 10.4.2 The Borrower will procure that any dividends shall not bear interest. “Distribution” or other distributions and interest paid or payable in this section 5 means connection therewith received by the transfer of cash or property without considerationShareholder, whether NCL America Holdings and/or Arrasas will be paid to the Borrower by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) dayspromptly on receipt.

Dividends. (a) The Subject to Section E below, the holders of shares of Convertible Preferred Stock, in preference to the outstanding Class A-1 Preferred Stock holders of any Junior Securities other than Common Stock, shall be entitled to receive, receive mandatory cash dividends on an As-Converted-to-Common-Stock-Basis in an amount equal to the cash dividends declared by the Board on the Common Stock out of funds of the Corporation legally available thereforetherefor, but only as, when, and if so declared. The Convertible Preferred Stock will not accrue dividends until and unless the date on which the holders of Capital Stock of the Corporation do not approve the Merger at the first meeting of stockholders upon which such matter is submitted for a vote after the date hereof or otherwise on the 60th day following the closing of the Exchange Offer if the Merger has not been consummated by such date (the “Dividend Accrual Date”). Beginning on and following such Dividend Accrual Date and ending on the date upon which the Merger becomes effective, the Convertible Preferred Stock shall accrue cumulative dividends on its Liquidation Preference at the an annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends 20%, which shall be payable in shares added to the Liquidation Preference of the Company’s Class A-1 such Convertible Preferred Stock quarterly, on the fifteenth last day of Octobereach calendar quarter (i.e., JanuaryMarch 31, April June 30, September 30 and July December 31) (each of such dates 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 Liquidation Preference pursuant to this Section D being a referred to herein as “Dividend Payment DateAccrued Dividends”) commencing on the date of issuance, and ). All dividend accruals pursuant to this Section D 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock based on 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 Date365-day year. 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 Any Accrued Dividends shall not have been paid on, the 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 Stockbear interest. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of may be declared and paid at any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daystime.

Dividends. (a) The holders of the outstanding Class A-1 Preferred Stock Shares shall be entitled to receive, when and as declared by the Board of Directors, out of funds legally available thereforefor the payment of dividends, cumulative 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 annual rate of 6% per annum Conversion Price. The amount referred to in the foregoing sentence with respect to each Dividend Period shall be determined as of the per share purchase price 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 ($1.10based 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 Class A-1 Preferred Stockrecord 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. Such 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 shares arrears to the holders of record of the CompanyPreferred 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 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 Class A-1 Preferred Stock quarterlyoption, 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 pays such dividend in full and in cash, at which time, such dividend shall no longer be part of the Stated Liquidation Preference Amount for the purposes of calculating dividends pursuant to this Section 3(a)) (any amount that has been added to the Stated Liquidation Preference Amount and not yet paid, a “Dividend Arrearage”). (b) The amount of dividends payable for the initial Dividend Period, or any other period shorter or longer than a full Dividend Period, on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing Preferred Shares shall be computed on the date basis of issuance, twelve 30-day months and a 360-day year. (c) All dividends paid with respect to Preferred Shares shall be pro-rated paid pro rata. (d) So long as any 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 first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 deficiency shall be fully paid on or declared and payment thereof set apart for such shares before payment on the Corporation makes any distribution (as hereinafter defined) Preferred Shares for all Dividend Periods prior to the holders 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 Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” Shares made for purposes of and in this section 5 means the transfer compliance with requirements of cash an employee incentive or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares benefit plan of the Corporation or shares acquired by any Subsidiary) for any consideration (or any moneys be paid to or made available for a sinking fund for the Corporation from employees pursuant to the terms redemption of any employee incentive plan, agreement or arrangementshares of such stock) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 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 other Parity Shares shall have been paid or set apart for payment for all past Dividend Periods with respect to the Preferred Shares and all past dividend periods with respect to such Parity Shares. (f) In any case where any dividend payment date shall not pursuant to be a contract Business Day, then (notwithstanding any other provision of an earlier 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 provided, however, that where a negotiable debt security is issued in exchange for shares the time no interest shall accrue on such amount of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date dividends for the determination of holders of Class A-1 Preferred Stock entitled to receive period from and after such dividend payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysdate.

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) The 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 the outstanding Class A-1 Preferred Stock USI’s board of 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 USI 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 receiveUSI and USI may redeem, out repurchase, acquire or retire an amount of funds legally available thereforeits capital stock or warrants or options therefor, cumulative dividends or declare and pay any dividend or make any distribution on its capital stock (collectively, “Distributions”), either (a) if at the annual rate time of 6% per annum of making such Distribution the per share purchase price Leverage Ratio ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Companycalculated on a pro forma basis based on USI’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April most recent financial statements delivered pursuant to Section 6.1 and July (each of such dates being a “Dividend Payment Date”) commencing on giving effect to any Permitted Acquisition since the date of issuancesuch financial statements, such Distribution and shall be pro-rated for any Indebtedness incurred in connection therewith, all in accordance with the first such quarterly period if the same terms of this Agreement) is less than 91 to 3.00 to 1.00, on an unlimited basis, and (ninety-oneb) days. All shares of common stock shall be valued if at the Fair Market Value thereof. As used herein Fair Market Value shall mean in time of making such Distribution the case of stock Leverage Ratio (calculated on a given date, the average of the closing bid prices for the Companypro forma basis based on USI’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on most recent financial statements delivered pursuant to Section 6.1 and giving effect to any Permitted Acquisition since the date of issuesuch financial statements, such Distribution and shall accrue from day to dayany Indebtedness incurred in connection therewith, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends all in respect of any previous quarterly dividend period shall not have been paid on, the 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 bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to accordance with the terms of any employee incentive plan, agreement this Agreement) is greater than or arrangement) including any such transfer, purchase or redemption by a subsidiary of equal to 3.00 to 1.00 in an amount not greater than the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysMaximum Payment Amount.

Dividends. (ai) The holders of the outstanding Class A-1 shares of Senior Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors, out of funds legally available thereforefor the payment of dividends, cumulative dividends (subject to Sections 3(a)(ii) and (iii) hereof) at a rate equal to the annual rate greater of 6(x) 13% per annum (computed on the basis of a 360 day year) or (y) the stated rate of 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 share purchase price quarter ($1.10each, a "Default Dividend") of for each quarter or portion thereof following the Class A-1 Preferred Stockdate 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 shares the manner set forth below in Sections 3(a)(ii) and (iii) quarterly on March 31, June 30, September 30, and December 31 of the Company’s Class A-1 Preferred Stock quarterlyeach year (unless such day is not a business day, in which event on the fifteenth day of October, January, April and July next succeeding business day) (each of such dates being a “"Dividend Payment Date”) commencing on the date of issuance, " and shall be pro-rated for the first each such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on being 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 declaredPeriod"). Such dividends shall be cumulative so that 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 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 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 Senior Preferred Stock by the issuance of additional shares of Senior Preferred Stock ("Additional Shares"). The Additional Shares shall be identical to all other shares of Senior Preferred Stock, 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 any previous quarterly dividend payment or payments on the Senior Preferred Stock that may be in arrears. (d) So long as any shares of 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 shall not unless (to the extent such dividends are payable in cash) full cumulative dividends have been or contemporaneously are declared and paid on, the deficiency shall be fully paid on or declared and a sum sufficient for the payment thereof set apart for such shares before payment on the Corporation makes any distribution (as hereinafter defined) Senior Preferred Stock for all Dividend Periods terminating on or prior to the holders date of Common Stockpayment of the dividend on such class or series of Parity Securities. Accrued but unpaid When (to the extent such dividends shall are payable in cash) dividends are not bear interest. “Distribution” paid in this section 5 means the transfer of cash full or property without considerationa sum sufficient for such payment is not set apart, whether by way of dividend or otherwise (except a dividend in as aforesaid, all dividends declared upon shares of the CorporationSenior Preferred Stock and all dividends declared upon any other class or series of Parity Securities shall (in each case, to the 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. (e) So long as any shares of the Senior Preferred Stock are outstanding, no dividends (other than dividends or the distributions paid in shares of, or options, warrants or rights to subscribe for or purchase shares of, Junior Securities) 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 (other than a redemption, purchase or redemption other acquisition of shares of the Corporation Common Stock made for cash purposes of an employee incentive or property (except for an exchange of shares benefit plan of the Corporation or shares acquired by 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 Corporation from employees pursuant to the terms redemption of any employee incentive plan, agreement or arrangement) including shares of any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 stock) by the Corporation, whether directly or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in indirectly (except by conversion into or exchange for Junior Securities), unless in each case (i) the full cumulative dividends on all outstanding shares the time of the distribution is Senior Preferred Stock and any other Parity Securities shall (to the date when extent payable in cash) have been paid or set apart for payment for all past Dividend Periods with respect to the Corporation acquires Senior Preferred Stock and all past dividend periods with respect to such Parity Securities and (ii) (to the shares extent payable in such exchange. The Board of Directors may fix a record date cash) sufficient funds shall have been paid or set apart for the determination payment of holders of Class A-1 the dividend for the current Dividend Period with respect to the Senior Preferred Stock entitled and the current dividend period with respect to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) dayssuch Parity Securities.

Dividends. (a) The holders No Loan Party will declare or pay any dividends or make any distributions on its Capital Stock (other than dividends or distributions payable in its own common stock) or redeem, repurchase or otherwise acquire or retire any of its Capital Stock at any time outstanding, except that (x) any Subsidiary may declare and pay dividends or make distributions to the Borrower or to a Wholly-Owned Subsidiary of the outstanding Class A-1 Preferred Stock shall be entitled Borrower, (y) so long as no Default or Unmatured Default then exists or would result therefrom, if the Parent qualifies as a partnership for U.S. federal income tax purposes, it may pay dividends or make distributions to receiveits shareholders in an aggregate amount not greater than the amount necessary for such shareholders to pay their actual state and U.S. federal income tax liabilities in respect of income allocated to such shareholders by the Parent and (z) so long as no Default or Unmatured Default then exists or would result therefrom, out of funds legally available thereforethe Borrower may pay dividends or make distributions to the Parent in an aggregate amount not to exceed $10,000,000 per Fiscal Year solely to enable the Parent to pay, cumulative as the same becomes due and payable, its overhead expenses and any legal, accounting and other professional fees and expenses it may incur. Notwithstanding the foregoing, any Loan Party may (i) make any dividends or distributions to its respective parent company, and the Parent may make any dividends or distributions to its equity owners, at the annual Parent’s publicly announced dividend rate of 6% per annum as of the date hereof (which rate is equal to $0.0675 per share purchase price unit quarterly), so long as (x) after giving pro forma effect thereto, Availability was not less than $1.10) 40,000,000 for any period of three consecutive days during the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing six-month period ending on the date on which such dividends or distributions were made and is not projected to be less than $40,000,000 during the six-month period immediately after the date on which such dividends or distributions are made (with such projected Availability to be determined by reference to the average projected Availability on the last day of issuance, each of the relevant six months) and shall be pro-rated for (y) the Fixed Charge Coverage Ratio is not less than 1.15 to 1.00 after giving pro forma effect to such distributions as if such distributions were paid on the first such quarterly day of the relevant period if the same is and (ii) make any other dividends or distributions or redeem, repurchase or otherwise acquire or retire any of its Capital Stock so long as (x) after giving pro forma effect thereto, Availability was not less than 91 $40,000,000 for any period of three consecutive days during the six-month period ending on the date on which such dividends, distributions, redemptions, repurchases or other acquisitions or retirements of its Capital Stock were made and is not projected to be less than $40,000,000 during the six-month period immediately after the date on which such dividends, distributions, redemptions, repurchases or other acquisitions or retirements of its Capital Stock are made (ninety-onewith such projected Availability to be determined by reference to the average projected Availability on the last day of each of the relevant six months) days. All shares and (y) the Fixed Charge Coverage Ratio is not less than 1.25 to 1.00 after giving pro forma effect to such distributions as if such distributions were paid on the first day of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean relevant period; provided, however, that in the case of stock on either clause (i) or (ii) above, (1) no Default or Unmatured Default then exists or would result therefrom and (2) the Borrower Representative has delivered a given datecertificate of an Authorized Officer attesting to the matters set forth in clauses (i) and (ii) above, as applicable, and showing in reasonable detail all calculations with respect thereto. (b) No Loan Party shall directly or indirectly enter into or become bound by any agreement, instrument, indenture or other obligation (other than this Agreement and the average other Loan Documents) that could directly or indirectly restrict, prohibit or require the consent of any Person with respect to the payment of dividends or distributions or the making or repayment of intercompany loans by a Subsidiary 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 deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) Borrower to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysBorrower.

Dividends. The Borrower will not declare or pay any dividend (other than dividends payable solely in stock of the Borrower) on any class of its stock or make any payment on account of the purchase, redemption or other retirement of any shares of such stock or make any distribution in respect thereof, either directly or indirectly, except that the foregoing shall not prohibit: (a) Any payment expressly permitted under Section 6.7. (b) The holders payment of any dividend within 60 days after the outstanding Class A-1 Preferred Stock shall be entitled to receive, out date of funds legally available therefore, cumulative dividends at the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each declaration of such dates being a “Dividend Payment Date”) commencing dividend if the dividend would have been permitted on the date of issuancedeclaration. (c) So long as no Default or Event of Default has occurred and is continuing, and shall be pro-rated the distribution of any stock of the Borrower either (i) solely in exchange for equity interests of the first such quarterly period if Borrower, or (ii) through the same is less application of net proceeds of a substantially concurrent sale for cash (other than 91 (ninety-oneto a Subsidiary of the Borrower) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for Borrower. (d) So long as no Default or Event of Default has occurred and is continuing, payments by the Company’s common Borrower to redeem or repurchase, or to enable Holdings to redeem or repurchase, stock for of Holdings or the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue Borrower issued to or on each such share commencing on the date behalf of issuedirectors, officers 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 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 bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares employees of the Corporation) or the purchase or redemption of shares Borrower pursuant to any policy of the Corporation for cash or property (except for an exchange of shares Borrower with respect to directors, officers and employees of the Corporation Borrower who have died or shares acquired by become disabled, or whose employment or other relationship with the Corporation from employees Borrower has been terminated, or pursuant to the terms of any employment contracts, other agreements or employee incentive planstock option or stock benefit plans of Holdings or the Borrower; provided, agreement or arrangementhowever, that the aggregate amount paid under this paragraph (d) including any such transfer, purchase or redemption by a subsidiary of after the Corporation. The time date hereof shall not as of any distribution by way date exceed the sum of dividend shall be (i) $1,000,000, and (ii) the product of (A) $1,000,000, and (B) the number of full calendar years ending on or after December 31, 1998 and before 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 such determination. (e) Payments by the CorporationBorrower to Holdings on account of operating and administrative expenses of Holdings, whether including but not limited to directors' fees and expenses, legal and audit expenses, and corporate franchise and other taxes, so long as the aggregate amount so paid in any single calendar year does not exceed $500,000. (f) Payments made or to be made in connection with the Recapitalization or to Holdings to enable Holdings to make such payments, so long as the aggregate amount of such payments does not pursuant exceed $19,000,000. (g) Payments to a contract Holdings in an amount not in excess of, and for the purpose of an earlier date; provided that where a negotiable debt security is issued enabling Holdings' payment of, the then-current tax liability of Holdings in exchange for shares the time respect of the distribution is taxable income of the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled Borrower imputed to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysHoldings.

Dividends. (a) The holders All cash and non-cash proceeds of the outstanding Class A-1 Preferred Stock Collateral, including, without limitation, any dividends, interest and other distributions on the Collateral, received by Secured Party or the Custodian shall be entitled credited to receivethe Collateral Account. For the avoidance of doubt, out as described in Section 3(a), any and all amounts paid or credited to the Collateral Account (including with respect to dividends or distributions) shall be net of funds legally available thereforeany Taxes required to be withheld, cumulative dividends at the annual rate of 6% per annum of the per share purchase price ($1.10including Taxes withheld under 871(m) of the Class A-1 Preferred StockU.S. Internal Revenue Code or similar or analogous provisions under any tax law of an applicable jurisdiction. Such dividends All cash and non-cash proceeds of the Collateral, including, without limitation, any dividends, interest and other distributions on the Collateral, received by Grantor shall be payable received in shares trust for the benefit of Secured Party, shall be segregated from other property of Grantor and shall immediately be delivered over to the Company’s Class A-1 Preferred Stock quarterlyCustodian to be credited to the Collateral Account to be held as Collateral in the same form as received or in such other manner as Secured Party may instruct (with any necessary endorsement). Unless an Event of Default with respect to Grantor as the Defaulting Party or a Termination Event with respect to Grantor as sole Affected Party has occurred and is continuing or an Early Termination Date has been designated, on Secured Party shall pay over, or cause to be paid over, to Grantor any Manufactured Dividend (defined below), but solely to the fifteenth day of October, January, April and July (each extent the amount of such dates being a “Manufactured Dividend exceeds any corresponding Dividend Payment Date”obligation under the Confirmation (and, for the avoidance of doubt, the parties’ obligations to make any Dividend Payment or pay any Manufactured Dividend amounts with respect to the same Cash Dividend (defined in the Master Confirmation) commencing on the date of issuance, and shall be pro-rated for netted against one another, such that only the first party with the greater payment obligation shall make payment of such quarterly period if the same is less than 91 (ninety-one) daysexcess amount). All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value “Manufactured Dividend” shall mean in the case amount of stock on 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 any cash dividend or not earned or declared. Such dividends shall be cumulative so that if such dividends distribution made in respect of any previous quarterly dividend period shall not the Shares that have been paid onRehypothecated, after netting any applicable withholding taxes that would apply to (i) such dividend or distribution received by Secured Party from the deficiency shall be fully paid on Issuer and (ii) the further payment of the amount representing such dividend or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter definedafter netting any withholding taxes in (i)) by Secured Party to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysGrantor.

Dividends. (a) The Except as set forth below, holders of the outstanding Class A-1 Series A Convertible Preferred Stock shall be entitled to receive, when and as declared by the Board, and out of any funds legally available thereforetherefor, cumulative dividends at the annual rate of 6% per annum of the per share purchase price eight percent ($1.108%) of the Class A-1 Preferred Stock. Such dividends shall be Series A Liquidation Preference (as hereinafter defined) per share of Series A Convertible Preferred, payable quarterly in shares of the Company’s Class A-1 Preferred Stock quarterlycash, on the fifteenth last day of OctoberMarch, JanuaryJune, April September and July (December of each of such dates being a “Dividend Payment Date”) year, commencing on September 30, 2000 (or the date of issuance, next succeeding business day). Dividends on the Series A Convertible Preferred shall accumulate 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 issuefrom September 30, 2000 and shall accrue from day to dayday thereafter, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends in respect of to any previous or current quarterly dividend period dividend, at the applicable annual rate specified above, shall not have been paid onor declared and a sum sufficient for the payment thereof set apart, the deficiency shall first be fully paid on before any dividend or other distribution shall be paid or declared and set apart for such shares before the Corporation makes any distribution Junior Securities (as hereinafter defined). Any provision of this Section 2(a) to the contrary notwithstanding, in the event of the closing of a Qualified Public Offering (as hereinafter defined) on or prior to September 15, 2002, all accrued and unpaid dividends with respect to the Series A Convertible Preferred shall terminate. (b) Unless approved by the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means a majority of the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in outstanding shares of the CorporationSeries A Convertible Preferred: (i) no dividend shall be paid or the purchase declared, and no distribution shall be made, on any Junior Securities; and (ii) no Junior Securities shall be purchased, redeemed or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation and no monies shall be paid into or set aside or made available for a sinking fund for the purchase, redemption or acquisition thereof until all dividends declared or required to be declared on the Series A Convertible Preferred shall have been paid and set apart. As used herein, "Junior Securities" shall mean the Common Stock, par value $.01 per share, of the Corporation (the "Common Stock") and shares of all other series of capital stock issued from employees pursuant time to time by the Corporation other than any series of capital stock the terms of any employee incentive planwhich expressly provide that the capital stock of such series rank senior to or on parity with the Series A Convertible Preferred with respect to dividend rights or distributions upon liquidation, agreement dissolution or arrangement) including any such transfer, purchase or redemption by a subsidiary winding up of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) days.

Dividends. (a) The holders Each Holder of the outstanding Class A-1 Series A Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors, out of funds legally available thereforetherefor, cumulative cash dividends on each share of Series A Preferred Stock at the annual a rate of 6% per annum of the equal to $1.30 per share purchase price ($1.10) of the Class A-1 Preferred Stockper annum. Such All dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 daycumulative, 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 semi-annually in arrears on each Dividend Payment Date, commencing on the second 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 10 nor more than 60 days prior to the applicable Dividend Payment Date. 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; provided, that such dividends shall continue to cumulate and shall be added to the Liquidation Preference at the time of repurchase as provided herein if not earlier declared and paid. Accrued dividends on the Series A Preferred Stock if not paid on the first or any subsequent Dividend Payment Date following accrual shall thereafter accrue additional dividends ("Additional Dividends") in respect thereof, compounded annually, at the rate of 13.0% per annum. (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 and dividends in connection with any optional redemption pursuant to paragraph A(5)(a) 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 60 days prior to the payment of such dividends. (d) As long as any Series A Preferred Stock is outstanding, no 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 acquired, nor may funds be set apart for such payment (other than dividends, other distributions, redemptions, repurchases or acquisitions payable in Series A Junior Securities and cash in lieu of fraction share of such Series A Junior Securities in connection therewith), 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 dividends or distributions on, or such repurchase or redemption of, such Series A Parity Securities (the "Series A Parity Payment Date") and (ii) any such dividends are declared and paid pro rata so that the amounts of any dividends declared and paid per share on outstanding Series A Preferred Stock and each other share of Series A Parity Securities will in all cases bear to each other the same ratio that accrued and unpaid dividends (including any Accumulated Dividends) per share of outstanding Series A Preferred Stock and such other outstanding shares of Series A Parity Securities bear to each other. (e) The Holders 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 Series A Junior Securities. Such dividends on the Series A Preferred Stock shall be cumulative cumulative, whether or not earned or declared, 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 have not been paid or set aside for payment, the amount of such unpaid dividends in respect shall be paid before any sum shall be set aside for or applied by the Corporation to the purchase, redemption or other acquisition for value of any previous quarterly shares of Series A Junior Securities (either pursuant to any applicable sinking fund requirement or otherwise) or any dividend period shall not have been paid on, the deficiency or other distribution shall be fully paid on or declared and set apart for payment on any Series A Junior Securities (the date of any such shares before actions to be referred to as the "Series A Junior Payment Date"); provided, however, that the foregoing shall not (i) prohibit the Corporation makes any distribution from repurchasing shares of Series A Junior Securities from a Holder who is, or was, a director or employee of the Corporation (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares an affiliate of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property and (except for an exchange of shares of the Corporation or shares acquired by ii) prohibit the Corporation from employees pursuant to the terms making dividends, other distributions, redemptions, repurchases or acquisitions in respect of Series A Junior Securities payable in Series A Junior Securities and cash in lieu of fraction share of such Series A Junior Securities in connection therewith. (f) Dividends payable on Series A Preferred Stock for any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend period less than one year shall be computed on the date basis of declaration thereof a 360-day year consisting of twelve 30-day months and the time actual number of any distribution by purchase or redemption of shares shall be days elapsed in 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 exchange period for shares the time of the distribution is the date when the Corporation acquires the shares in which such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysdividends are payable.

Dividends. (ai) The Each Holder of outstanding shares of 2003 Convertible Preferred Stock, in preference to the holders of any Junior Securities of the outstanding Class A-1 Preferred Stock Corporation, shall be entitled to receive, when, as and if declared by the Board of Directors, out of funds legally available thereforefor the payment of dividends, cumulative dividends at on each share of 2003 Convertible Preferred Stock payable quarterly in arrears on each Dividend Payment Date in an amount equal to (A) the annual rate then applicable Dividend Rate MULTIPLIED BY (B) the sum of 6% per annum (1) all accrued but unpaid dividends on such share accrued pursuant to this PARAGRAPH (c)(i) through the end of the per share purchase price ($1.10) of Dividend Period ended immediately prior to the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days Date immediately preceding the Dividend Payment Date in question and (2) the Liquidation Value, it being understood that dividends otherwise payable on any Dividend Payment Date on each share of 2003 Convertible Preferred Stock shall accrue (whether or not declared), be fully cumulative from the Issue Date and, as a result of CLAUSE (1) above, be compounded quarterly; PROVIDED that, in the event of a Liquidation, Change of Control, Qualified Listing or Qualified Recapitalization following the first anniversary of the Issue Date, the accrual and compounding of dividends on the 2003 Convertible Preferred Stock for the period up to and including the Dividend Payment Date immediately preceding the fourth anniversary of the Issue Date shall be accelerated and shall be deemed to have fully accrued for such period as of the date immediately prior to such Liquidation, Change of Control, Qualified Listing or Qualified Recapitalization. Any payment of Dividends made in cash shall be applied to pay accrued and unpaid Dividends in reverse order of accrual thereof. (ii) Each Dividend shall be payable to the Holders of record as they appear on the stock books of the Corporation as of the close of business on the Dividend Record Date immediately preceding the related Dividend Payment Date. Such dividends Dividends shall cease to accrue on each such share commencing in respect of the shares of 2003 Convertible Preferred Stock on the date such shares of issue, and 2003 Convertible Preferred Stock are redeemed in accordance with PARAGRAPH (f) unless the Corporation shall have failed to pay the relevant redemption price on 2003 Convertible Preferred Stock to be redeemed on the date fixed for redemption. Dividends shall cease to accrue from day to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends in respect of shares of 2003 Convertible Preferred Stock on the date such shares are converted in accordance with PARAGRAPH (g) and following such conversion, each Holder shall be deemed to be the holder of the shares of Common Stock issuable upon such conversion for all purposes, notwithstanding any previous quarterly dividend period delay in issuing any certificate representing such shares to such Holder. (iii) (A) So long as any share of 2003 Convertible Preferred Stock is outstanding, the Corporation shall not have been paid ondeclare, the deficiency shall be fully paid on pay or declared and set apart for such shares before payment any dividend on any Parity Securities, or make any payment on account of, or set apart for payment money for a sinking or other similar fund for, the Corporation makes purchase, redemption or other retirement of, any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) Parity Securities or the purchase any warrants, rights, calls or redemption of shares options exercisable for or convertible into any of the Corporation for cash Parity Securities whether in cash, obligations or property (except for an exchange of shares Capital Stock of the Corporation or shares acquired other property (other than in Parity Securities or Junior Securities or warrants, rights, calls or options exercisable for or convertible into Parity Securities or Junior Securities), and shall not permit any corporation or other entity directly or indirectly controlled by the Corporation from employees pursuant to purchase or redeem any of the terms of any employee incentive plan, agreement Parity Securities or arrangement) including any such transferwarrants, purchase rights, calls or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 options (other than in exchange for shares Parity Securities or Junior Securities or warrants, rights, calls or options exercisable for or convertible into Parity Securities or Junior Securities) unless full cumulative Dividends determined in accordance herewith on the time 2003 Convertible Preferred Stock have been or contemporaneously are paid or are deemed paid in full in cash from the Issue Date through the end of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date most recently completed Dividend Period for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysDividends have accrued.

Dividends. (a) The holders Holders of the outstanding Class A-1 Preferred Stock MRP Shares shall be entitled to receivereceive quarterly cumulative cash dividends, when, as and if authorized by the Board of Directors and declared by the Company, out of funds legally available thereforetherefor, cumulative dividends at the annual rate of 6% per annum of equal to the per share purchase price Applicable Rate ($1.10or the Default Rate), and no more, payable on the respective dates determined as set forth in paragraph (b) of this Section 2. Dividends on Outstanding MRP Shares shall accumulate from the Class A-1 Preferred Stock. Such dividends Original Issue Date. (i) Dividends shall be payable in shares quarterly when, as and if authorized by the Board of Directors and declared by the Company’s Class A-1 Preferred Stock quarterly, Company beginning on the fifteenth day of October, January, April and July (each of such dates being a “initial Dividend Payment Date”) commencing , on MRP Shares, and with respect to any Dividend Period thereafter on the date first (1st) Business Day following each Quarterly Dividend Date. (ii) Except as otherwise set forth herein, the Company shall pay an aggregate amount of issuancefederal funds or similar same-day funds, and equal to the dividends to be paid to all Holders of such shares on such Dividend Payment Date 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 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock paid on 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 Date therefor to the Holders as their names appear on the date share ledger or share records of issue, and shall accrue from the Company at the close of business on the fifth (5th) day prior to day, whether the Quarterly Dividend Date (or not earned or declared. Such dividends shall be cumulative so that if such dividends 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 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. No interest will be payable in respect of any previous quarterly dividend period 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 equal to one of the ratings set forth in 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 have been paid on, be cumulative) set opposite such rating (or the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes equivalent rating from any distribution (as hereinafter definedOther Rating Agency) to the holders of Common StockApplicable Rate. Accrued but unpaid dividends shall not bear interest. FITCH ENHANCED DIVIDEND AMOUNT “DistributionA-” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) days.0.5%

Dividends. (a) The holders Holders of the issued and outstanding Class A-1 Series E Preferred Stock Shares shall be entitled to receive, when and as declared by the Board of Directors out of funds of the Corporation legally available thereforefor the payment of distributions, cumulative preferential cash dividends at the annual a rate of 6% per annum equal to the Dividend Rate of the twenty-five thousand dollar ($25,000.00) per share purchase price stated liquidation preference of the Series E Preferred Shares. Except as otherwise provided in paragraphs ($1.10b) and (c) of this Section 3, the Class A-1 Preferred StockDividend Rate shall be equal to the Stated Rate. Such dividends shall accrue and accumulate on each issued and outstanding share of the Series E Preferred Shares on a daily basis from (but excluding) the original date of issuance of such share and shall be payable monthly in shares equal amounts in arrears on the last calendar day of each Dividend Period except for Series E Preferred Shares issued during [ ] 2012, for which an initial partial dividend payment for dividends accrued in [ ] 2012 shall be payable at the end of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July first full Dividend Period (each of such dates day being hereinafter called a “Dividend Payment Date”); provided that (i) Series E Preferred Shares issued during any Dividend Period after the Dividend Record Date for such Dividend Period shall only begin to accrue dividends on the first day of the next Dividend Period; and (ii) if any Dividend Payment Date is not a Business Day, then the dividend that would otherwise have been payable on such Dividend Payment Date may be paid on the next succeeding Business Day with the same force and effect as if paid on such Dividend Payment Date, and no interest or additional dividends or other sums shall accrue on the amount so payable from such Dividend Payment Date to such next succeeding Business Day. Any dividend payable on the Series E Preferred Shares shall be computed on the basis of a three hundred and sixty (360)-day year consisting of twelve (12) thirty (30)-day months. Any dividend payable on the Series E Preferred Shares for any partial Dividend Period shall be prorated. Dividends shall be payable to holders of record as they appear in the stock records of the Corporation at the close of business on the applicable record date, which shall be (i) with respect to the partial Dividend Period for dividends accrued during [ ] 2012 described above, [ ], 2012, and (ii) with respect to all other Dividend Periods, the tenth (10th) day preceding the applicable Dividend Payment Date, or such other date designated by the Board of Directors or an officer of the Corporation duly authorized by the Board of Directors for the payment of dividends that is not more than thirty (30) nor less than ten (10) days prior to such Dividend Payment Date (each such date, a “Dividend Record Date”). (b) If at any time four (4) Quarterly Dividend Defaults occur, whether consecutive or non-consecutive (a “Dividend Default”), then: (i) the Dividend Rate shall increase to the Penalty Rate, commencing on the first day after the Dividend Payment Date on which a Dividend Default occurs and for each subsequent Dividend Payment Date thereafter until such time as the Corporation has paid all accumulated accrued and unpaid dividends on the Series E Preferred Shares in full and has paid accrued dividends for all Dividend Periods during the two (2) most recently completed Quarterly Dividend Periods in full in cash, at which time the Dividend Rate shall revert to the Stated Rate; (ii) on the next Dividend Payment Date following the Dividend Payment Date on which a Dividend Default occurs, and continuing until such time as the Corporation has paid all accumulated accrued and unpaid dividends on the Series E Preferred Shares in full and has paid accrued dividends for all Dividend Periods during the two (2) most recently completed Quarterly Dividend Periods in full in cash, the Corporation shall pay all dividends on the Series E Preferred Shares, including all accumulated accrued and unpaid dividends, on each Dividend Payment Date either in cash or, if not paid in cash, by issuing to the holders thereof (A) if the Common Shares are then subject to a National Market Listing, registered Common Shares with a value equal to the amount of dividends being paid, calculated based on the then-current Market Value of the Common Shares, plus cash in lieu of any fractional Common Share; or (B) if the Common Shares are not then subject to a National Market Listing, additional Series E Preferred Shares with a value equal to the amount of dividends being paid, calculated based on the twenty-five thousand dollar ($25,000.00) per share stated liquidation preference of the Series E Preferred Shares (and dividends on any such Series E Preferred Shares upon issuance shall accrue at the Penalty Rate and accumulate until such time as the Dividend Rate shall revert to the Stated Rate in accordance with subparagraph (i) of this paragraph (b)); (iii) until such time as the Dividend Rate reverts to the Stated Rate pursuant to subparagraph (i) of this paragraph (b), the holders of Series E Preferred Shares will have the voting rights described below in paragraph (a) of Section 8; and (iv) to the extent that the Corporation determines a shelf registration statement to cover resales of Common Shares or Series E Preferred Shares is required in connection with the issuance of, or for resales of, such Common Shares or Series E Preferred Shares issued as payment of a dividend, the Corporation will use its commercially reasonable efforts to file and maintain the effectiveness of such a shelf registration statement until such time as all shares of such stock have been resold thereunder or such shares are eligible for resale pursuant to Rule 144(b)(1) under the Securities Act of 1933, as amended. Following any Dividend Default that has been cured by the Corporation as provided above in subparagraph (i) of this paragraph (b), if the Corporation subsequently fails to pay cash dividends on the Series E Preferred Shares in full for any Dividend Period, such subsequent failure shall constitute a separate Dividend Default, and the foregoing provisions of subparagraphs (i), (ii), (iii), and (iv) of this paragraph (b) shall immediately apply until such subsequent Dividend Default is cured as so provided. (c) Once the Series E Preferred Shares become initially eligible for National Market Listing, if the Corporation fails to maintain a National Market Listing for the Series E Preferred Shares for one hundred and eighty (180) consecutive days or longer (a “Listing Default”), then: (i) the Dividend Rate shall increase to the Penalty Rate, commencing on the day after the Listing Default and continuing until such time as the Corporation has cured the Listing Default by again subjecting the Series E Preferred Shares to a National Market Listing, at which time the Dividend Rate shall revert to the Stated Rate; and (ii) until such time as the Dividend Rate reverts to the Stated Rate pursuant to subparagraph (i) of this paragraph (c), the holders of Series E Preferred Shares will have the voting rights described below in paragraph (a) of Section 8. Following any Listing Default that has been cured by the Corporation as provided above in subparagraph (i) of this paragraph (c), if the Series E Preferred Shares subsequently cease to be subject to a National Market Listing, such event shall constitute a separate Listing Default, and the foregoing provisions of subparagraphs (i) and (ii) of this paragraph (c) shall immediately apply until such time as the Series E Preferred Shares are again subject to a National Market Listing. (d) The Corporation shall at all times keep reserved a sufficient number of Common Shares or Series E Preferred Shares for the payment of dividends on the Series E Preferred Shares as described above in paragraph (b) of this Section 3, and if a dividend is paid in shares of stock an amount equal to the aggregate par value of the shares issued shall be designated as capital in respect of such shares in accordance with Section 154 of the DGCL. (e) No dividend on the Series E Preferred Shares will be declared by the Corporation or paid or set apart for payment by the Corporation at such time as the terms and provisions of Senior Shares or 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, payment or setting aside of funds is restricted or prohibited under the DGCL or other applicable law; provided, however, notwithstanding anything to the contrary contained herein, dividends on the Series E Preferred Shares shall continue to accrue and accumulate regardless of whether: (i) any or all of the foregoing restrictions exist; (ii) the Corporation has earnings or profits; (iii) there are funds legally available for the payment of such dividends; or (iv) such dividends are authorized by the Board of Directors. Accrued and unpaid dividends on the Series E Preferred Shares will accumulate as of the Dividend Payment Date on which they first become payable or on the date of issuanceredemption of the Series E Preferred Shares, as the case may be. (f) Except as provided in the next sentence, if any Series E Preferred Shares are outstanding, no dividends will be declared or paid or set apart for payment on any Parity Shares or Junior Shares, unless all accumulated accrued and unpaid dividends are contemporaneously declared and paid in cash or declared and a sum of cash sufficient for the payment thereof set apart for such payment on the Series E Preferred Shares for all past Dividend Periods with respect to which full dividends were not paid on the Series E Preferred Shares either in cash or, as applicable, in Common Shares or Series E Preferred Shares. When dividends are not paid in full (or a sum sufficient for such full payment is not so set apart for payment) upon the Series E Preferred Shares and upon all Parity Shares, all dividends declared, paid or set apart for payment upon the Series E Preferred Shares and all such Parity Shares 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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, declared 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 deficiency shall be fully paid on pro rata or declared and set apart for payment pro rata so that the amount of dividends declared per share of Series E Preferred Shares and per share of such shares before Parity Shares shall in all cases bear to each other the same ratio that accumulated dividends per share of Series E Preferred Shares and such other Parity Shares (which shall not include any accumulation in respect of unpaid dividends for prior dividend periods if such other Parity Shares do not bear cumulative dividends) 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 E Preferred Shares which may be in arrears, whether at the Stated Rate or at the Penalty Rate. (g) Except as provided in paragraph (f) of this Section 3, unless all accumulated accrued and unpaid dividends on the Series E Preferred Shares are contemporaneously declared and paid in cash or declared and a sum of cash sufficient for the payment thereof is set apart for payment for all past Dividend Periods with respect to which full dividends were not paid on the Series E Preferred Shares either in cash or, as applicable, in Common Shares or Series E Preferred Shares, no dividends (other than in Common Shares or Junior Shares ranking junior to the Series E Preferred Shares as to dividends and upon liquidation) may be declared or paid or set apart for payment upon the Common Shares or any Junior Shares or Parity Shares, nor shall any Common Shares or any Junior Shares or Parity Shares be redeemed, purchased or otherwise acquired directly or indirectly for any consideration (or any monies be paid to or made available for a sinking fund for the redemption of any such stock) by the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) by conversion into or the exchange for Junior Shares, by redemption, purchase or redemption acquisition of shares of the Corporation for cash or property (except for an exchange of shares stock under any employee benefit plan of the Corporation or shares acquired by a repurchase or acquisition of stock from a director, manager, officer or employee of the Corporation from employees pursuant or any subsidiary or affiliate thereof in connection with the termination of such person’s service or employment). (h) Holders of Series E Preferred Shares shall not be entitled to any dividend, whether payable in cash, property or shares, in excess of all accumulated accrued and unpaid dividends on the terms of any employee incentive plan, agreement or arrangement) including any Series E Preferred Shares as described in this Section 3. Any dividend payment made on the Series E Preferred Shares shall first be credited against the earliest accumulated accrued and unpaid dividend due with respect to such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and shares which remains payable at 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) dayspayment.

Dividends. (a) The holders of the outstanding Class A-1 Series B Preferred Stock (collectively, the "Holders") shall not be entitled to receive dividends unless, within six (6) months following the date of issuance of the Series B Preferred Stock to the Holders (the "Amendment Date"), the Company has not amended its certificate of incorporation in order to authorize a sufficient number of shares of Common Stock into which all of the issued and outstanding shares of Series B Preferred Stock may be converted. In the event the Company does not make such an amendment by the Amendment Date, the Holders shall be entitled to receive, out of funds legally available therefore, receive cumulative dividends per share at the annual rate of 6% eight percent (8%) per annum of the per share purchase price Per Share Liquidation Preference ($1.10) as defined below), which shall accrue daily from the date of issuance of the Class A-1 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 with respect to Junior Securities and shall be equal, if not greater, in shares amount to any such dividend on a per share basis; and (ii) on parity with any dividend with respect to the Parity Securities and at an amount equal to the dividend on a per share basis received by the holders of the Company’s Class A-1 Preferred Stock quarterlyParity Securities. (b) Any and all dividends shall be payable out of any cash legally available therefor, on and if there is not a sufficient amount of cash available, then out of the fifteenth day remaining assets of October, January, April and July the Company legally available therefor (each of such dates being a “Dividend Payment Date”) commencing valued at the fair market value thereof on the date of issuancepayment, 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 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 bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired determined by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date of the Company); provided, however, that to the extent funds or assets are not legally available for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereonany dividend, which record date then the Company shall be no more than sixty (60) dayspay such unpaid dividends promptly as funds or assets become legally available therefor.

Dividends. (a) The holders of the then outstanding Class A-1 shares of Series C Preferred Stock shall will be entitled to receive, receive out of funds of the Company legally available therefore, cumulative dividends accruing on a daily basis from the Original Issuance Date (as hereinafter defined) through and including the date on which such dividends are paid at the annual rate of 610% per annum of (the per share purchase price ($1.10"Applicable Rate") of the Class A-1 Liquidation Preference (as hereinafter defined) per share of the Series C Preferred Stock. Such dividends , payable on each March 31, June 30, September 30 and December 31, commencing on June 30, 2003 (each such date, a "Dividend Payment Date") and calculated in accordance with Section 3(d); provided that: (i) if any such Dividend Payment Date is not a Business Day then such dividend shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuancenext Business Day, and shall be pro-rated (ii) accumulated and unpaid dividends for the first such any prior quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall may be valued paid at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 declaredany time. Such dividends shall be cumulative so that if such dividends in respect of any previous quarterly dividend period shall whether or not have been paid on, the deficiency shall be fully paid on earned or declared and set apart whether or not there are profits, surplus or other funds of the Company legally available for such the payment of dividends. The term "Original Issuance Date" means March [27], 2003. 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 before the Corporation makes any distribution of Series C Preferred Stock (as hereinafter definedincluding fractional shares) having an aggregate Liquidation Preference equal to the amount 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 of Common Stock. Accrued thereof based upon the aggregate accrued but unpaid dividends shall not bear intereston the shares held by each such holder. “Distribution” in If and when any shares are issued under this section 5 means Section 3(a) for the transfer payment of cash or property without considerationaccrued dividends, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be validly issued and outstanding and fully paid and nonassessable. For all purposes hereunder, dividends on the day cash or property is transferred by Series C Preferred Stock shall be treated as if the Corporationsame were paid on the relevant Dividend Payment Date, whether or not 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 accrue and be cumulative from the Dividend Payment Date in respect of which such shares were scheduled to be paid pursuant to this Section 3(a) as a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysdividend.

Dividends. (a) The holders Holders of the outstanding Class A-1 shares of Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors out of funds of the Company legally available thereforefor payment, cumulative dividends in cash at the annual rate of 6% per annum of Dividend Rate. To the per share purchase price ($1.10) of extent that the Class A-1 Preferred Stock. Such dividends shall be payable in shares of Company is legally permitted to pay dividends, the Company’s Class A-1 Preferred Stock quarterly, Board of Directors shall declare and the Company shall pay dividends in cash on the fifteenth day of October, January, April and July (each of such dates being 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 Dividends on the date of issuePreferred Stock shall be payable quarterly in arrears at the Dividend Rate, and shall accrue from day to dayaccumulate, whether or not earned or declared. Such , 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 cumulative so that if funds of the Company legally available for the payment of such dividends in respect or the Company declares the payment of any previous quarterly dividend period shall not have been paid ondividends), the deficiency and shall be fully paid in cash. Dividends shall be payable in arrears on or declared and set apart for such shares before the Corporation makes any distribution each Dividend Payment Date (as hereinafter definedcommencing on August 15, 2015) to the holders of Common Stockrecord of Preferred Stock as they appear on the Company’s stock register at the close of business on the relevant Dividend Record Date. Accrued but unpaid Accumulations of dividends on shares of Preferred Stock for any past Dividend Periods may be declared and paid at any time to holders of record of Preferred Stock not more than 30 nor less than 10 calendar days immediately preceding any Dividend Payment Date and shall not bear interest. “Distribution” in this section 5 means The Company shall provide not less than 20 Scheduled Trading Days’ notice prior to any such Dividend Payment Date. Dividends payable for any period less than a full quarterly Dividend Period (based upon the transfer number of cash days elapsed during the period) shall be computed on the basis of a 360-day year consisting of twelve 30-day months. (b) No dividend shall be declared or property without considerationpaid upon, whether by way or any sum set apart for the payment of dividends upon, any outstanding share of the 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 has been set apart for the payment of such dividend, upon all outstanding shares of Preferred Stock. (c) No dividends or other distributions (other than a dividend or otherwise (except a dividend 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 Corporationredemption 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 redemption acquisition. Notwithstanding the foregoing, if full dividends have not been paid on the Preferred Stock and any Parity Stock, dividends may be declared and paid on the Preferred Stock and such Parity Stock so long as the dividends are declared and paid pro rata so that the amounts of dividends declared per share on the Preferred Stock and such Parity Stock shall in all cases bear to each other the same ratio that accumulated and unpaid dividends per share on the shares of Preferred Stock and such Parity Stock bear to each other at the time of declaration. (d) Holders of shares of Preferred Stock shall not be entitled to any dividend in excess of full cumulative dividends. (e) If any Dividend Payment Date falls on a day that is not a Business Day, the Corporation for cash required payment will be on the next succeeding Business Day and no interest or property dividends on such payment will accrue or accumulate as the case may be, in respect of the delay. (except for an exchange f) The Holders of shares of Preferred Stock at the Corporation close of business on a Dividend Record Date shall be entitled to receive the dividend payment on those shares on the corresponding Dividend Payment Date notwithstanding the conversion of such shares in accordance with Section 9 following such Dividend Record Date or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary Company’s default in payment of the Corporationdividend due on such Dividend Payment Date. The time of any distribution by way of dividend Except as provided in Sections 9, 10 and 11, the Company shall be the date of declaration thereof and the time of any distribution by purchase make no payment or redemption of shares shall be the day cash or property is transferred by the Corporationallowance for unpaid dividends, whether or not pursuant to a contract in arrears, on converted shares of an earlier date; provided that where a negotiable debt security is issued in exchange Preferred Stock or for shares the time of the distribution is the date when the Corporation acquires dividends on the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Common Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysissued upon conversion.

Dividends. (a) The holders HARRP Board, in its sole discretion, may declare a dividend to be paid to the Members as a class with respect to any calendar year. The dividend, if any, with respect to a calendar year shall be declared when the HARRP Board believes that all or substantially all of the outstanding Class A-1 Preferred Stock claims and losses relating to the calendar year have been resolved and additional claims and losses relating to the calendar year are barred or substantially unlikely. The amount of the dividend shall be determined by the HARRP Board, in its sole discretion. The dividend shall be allocated among the Members of record in the ratio that the Net Financial Contribution of each Member entitled to receivethe dividend for the calendar year for which the dividend is declared bears to the total Net Financial Contribution of all Members entitled to the dividend for the calendar year for which the dividend is declared. For purposes of this Agreement, out the “Net Financial Contribution” of funds legally available thereforeeach Member, cumulative dividends at with respect to the annual rate of 6% per annum of calendar year for which the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends dividend is declared, shall be payable in shares of equal to the Companypositive amount, if any, by which the Member’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuance, and shall be pro-rated written Contribution for the first such quarterly period if calendar year exceeds the same is less than 91 (ninety-one) daysMember’s Paid Losses for the calendar year. All shares of common stock shall be valued at Notwithstanding the Fair Market Value thereof. As used herein Fair Market Value shall mean foregoing, in the case event the foregoing allocation of stock on 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 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 bear interest. “Distribution” be in this section 5 means accordance with HARRP’s exemption from Federal income taxation, the transfer of cash or property without considerationHARRP Board may allocate the dividend among the Members in a fair and equitable manner, whether by way of dividend or otherwise (except a dividend determined in shares the discretion of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation HARRP Board, which shall be in accordance with HARRP’s exemption from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the CorporationFederal income taxation. The time of any distribution by way of dividend HARRP Board shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may 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 holders any dividend among the Members shall be conclusive and binding upon the Members. At the option of Class A-1 Preferred Stock 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 payment of a dividend declared thereon, relating to a calendar year (or portion thereof) during which the terminated or expelled Member was a Member of HARRP if the effective date of termination or expulsion is prior to the record date shall be no more than sixty (60) daysfor the dividend.

Dividends. (a) The holders of the then outstanding Class A-1 shares of Series B Preferred Stock shall will be entitled to receive, receive out of funds of the Company legally available therefore, cumulative dividends accruing on a daily basis from the Original Issuance Date (as hereinafter defined) through and including the date on which such dividends are paid at the annual rate of 610% per annum of (the per share purchase price ($1.10"Applicable Rate") of the Class A-1 Liquidation Preference (as hereinafter defined) per share of the Series B Preferred Stock. Such dividends , payable on each March 31, June 30, September 30 and December 31, commencing on September 30, 2002 (each such date, a "Dividend Payment Date") and calculated in accordance with Section 3(d); provided that: (i) if any such Dividend Payment Date is not a Business Day then such dividend shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuancenext Business Day, and shall be pro-rated (ii) accumulated and unpaid dividends for the first such any prior quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall may be valued paid at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 declaredany time. Such dividends shall be cumulative so that if such dividends in respect of any previous quarterly dividend period shall whether or not have been paid on, the deficiency shall be fully paid on earned or declared and set apart whether or not there are profits, surplus or other funds of the Company legally available for such the payment of dividends. The term "Original Issuance Date" means June 27, 2002. 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 before the Corporation makes any distribution of Series B Preferred Stock (as hereinafter definedincluding fractional shares) having an aggregate Liquidation Preference equal to the amount 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 of Common Stock. Accrued thereof based upon the aggregate accrued but unpaid dividends shall not bear intereston the shares held by each such holder. “Distribution” in If and when any shares are issued under this section 5 means Section 3(a) for the transfer payment of cash or property without considerationaccrued dividends, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be validly issued and outstanding and fully paid and nonassessable. For all purposes hereunder, dividends on the day cash or property is transferred by Series B Preferred Stock shall be treated as if the Corporationsame were paid on the relevant Dividend Payment Date, whether or not 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 accrue and be cumulative from the Dividend Payment Date in respect of which such shares were scheduled to be paid pursuant to this Section 3(a) as a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysdividend.

Dividends. (a) The holders Each Holder of the outstanding Class A-1 Series A Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors, out of funds legally available thereforetherefor, cumulative cash dividends on each share of Series A Preferred Stock at the annual a rate of 6% per annum equal to 13.0% of the per share purchase price ($1.10) Liquidation Preference of the Class A-1 Preferred Stocksuch share. Such All dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 daycumulative, 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 annually 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. Such 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 cumulative 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 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 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 Series 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 a prorated dividend on the Series A Preferred Stock at the rate aforesaid from the Dividend Payment Date 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 amount of such unpaid dividends in respect shall be paid before any sum shall be set aside for or applied by the Corporation to the purchase, redemption or other acquisition for value of any previous quarterly shares of Series A Junior Securities (either pursuant to any applicable sinking fund requirement or otherwise) or any dividend period shall not have been paid on, the deficiency or other distribution shall be fully paid on or declared and set apart for payment on any Series A Junior Securities (the date of any such actions to be referred to as the "Series A Junior Payment ----------------------- Date"); provided, however, that the foregoing shall not (i) prohibit the ---- -------- ------- Corporation from repurchasing shares before of Series A Junior Securities from a Holder who is, or was, a director or employee of the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares an affiliate of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property and (except for an exchange of shares of the Corporation or shares acquired by ii) prohibit the Corporation from employees pursuant making dividends, other distributions, redemptions, repurchases or acquisitions in respect of Series A Junior Securities payable in Series A Junior Securities and cash in lieu of fractional shares of such Series A Junior Securities. (f) Dividends payable on Series A Preferred Stock for any period less than one year shall be computed on the basis of a 360-day year consisting of twelve 30-day months and the actual number of days elapsed in the period for which such dividends are payable. (g) The Corporation shall not claim any deduction from gross income for dividends paid on Series A Preferred Stock in any Federal income tax return, claim for refund, or other statement, report or submission made to the terms 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)(1) of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor provision). At ---- the reasonable request of any employee incentive planHolder (and at the expense of such Holder), agreement or arrangementthe Corporation shall join in the submission to the Internal Revenue Service of a request for a ruling that the dividends paid on Series A Preferred Stock shall be eligible for the dividends received deduction under Section 243(a) (1) including any such transfer, purchase or redemption by a subsidiary of the CorporationCode (or any successor provision). The time 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 distribution by way dividends (within the meaning of dividend shall be 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 exchange for shares the time Section 316(a) of the distribution is Code or any successor provision) paid on Series A Preferred Stock. To the date when extent possible, the Corporation acquires the shares in such exchange. The Board principles of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled this paragraph A(3)(g) shall also apply with respect to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysstate and local income taxes.

Dividends. (a) The Subject to the preferential rights of the holders of any Senior Shares, the outstanding Class A-1 holders of any Series A Preferred Stock Share shall be entitled to receive, when, as, and if authorized by the Board of Directors and declared by the Corporation, out of funds legally available thereforefor that purpose, cumulative dividends at payable in cash in an amount per Share equal to 6.0% of the annual rate of 6% liquidation preference per annum of the (equivalent to $60.00 per share purchase price ($1.10Share per annum), except as provided in Sections 3(b), 3(c) of the Class A-1 Preferred Stockand 3(d) hereof. Such dividends shall begin to accrue and shall be payable fully cumulative from the Issue Date of such Series A Preferred Share, whether or not in shares any Dividend Period or Periods there shall be funds of the Company’s Class A-1 Preferred Stock quarterly, on Corporation legally available for the fifteenth day of October, January, April and July (each payment of such dates being a “Dividend Payment Date”) commencing on the date of issuancedividends, and shall be pro-rated for payable quarterly, when, as and if authorized by the first such quarterly period if Board of Directors and declared by the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean Corporation, in the case of stock arrears on 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 Dates, commencing on the date first Dividend Payment Date after the first Issue Date. Each such dividend shall be payable in arrears to the holders of issuerecord of Series A Preferred Shares, and shall accrue from as they appear on the stock records of the Corporation on the last day to dayof the calendar quarter, whether or not earned a Business Day, immediately preceding the quarter in which the applicable Dividend Payment Date falls. Accrued and unpaid dividends on the Series A Preferred Shares for any past Dividend Periods may be declared and paid at any time and for such interim periods, without reference to any regular Dividend Payment Date, to holders of record on such date, not less than ten (10) nor more than fifty (50) days preceding the payment date thereof, as may be fixed by the Board of Directors. Notwithstanding anything contained herein to the contrary, dividends on the Series A Preferred Shares shall accrue whether or not the Corporation has Available Cash, whether or not there are funds legally available for the payment of such dividends, and whether or not such dividends are authorized or declared. Such . (b) If all of the Series A Preferred Shares selected for redemption pursuant to Section 6 are not redeemed by the Corporation in accordance with the terms of Section 6, then the annual dividend rate for the Series A Preferred Shares will increase to 12.0% of the liquidation preference per annum (equivalent to $120 per Share per annum) beginning on the calendar day immediately following the redemption date (as determined in accordance with Section 6(c)); provided, however, that such 12.0% dividend rate shall not apply unless and until the aggregate number of Series A Preferred Shares selected for redemption pursuant to Section 6 that are not redeemed by the Corporation in accordance with the terms of Section 6 constitute 10.0% or more of all outstanding Series A Preferred Shares. (c) If, at any time following [●], 2020, dividends on any Series A Preferred Shares shall be in arrears for more than two (2) Dividend Periods, whether or not consecutive, the then-applicable annual dividend rate for the Series A Preferred Shares will increase beginning on such date by 3.0% of the liquidation preference per annum (equivalent to an additional $30 per share per annum). (d) The amount of dividends payable for each full Dividend Period for the Series A Preferred Shares shall be computed by dividing the then-applicable annual dividend rate by four. The amount of dividends payable for the Series A Preferred Shares for any partial Dividend Period shall be prorated and computed on the basis of a 360-day year consisting of twelve (12) thirty (30)-day months. Holders of Series A Preferred Shares shall not be entitled to any dividends, whether payable in cash, property or stock, in excess of cumulative so that if such dividends dividends, as herein provided, on the Series A Preferred Shares. Except as set forth in Section 3(c), no interest, or sum of money in lieu of interest, shall be payable in respect of any previous quarterly dividend payment or payments on the Series A Preferred Shares that may be in arrears. (e) So long as any Series A Preferred Shares are outstanding, no full dividends, except as described in the immediately following sentence, shall be declared or paid or Set Apart for Payment on any class or series of Parity Shares for any period unless full cumulative dividends have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof Set Apart for Payment on the Series A Preferred Shares for all past Dividend Periods terminating on or prior to the dividend payment date on such class or series of Parity Shares. When dividends are not paid in full (or a sum sufficient for such full payment is not Set Apart for Payment), as aforesaid, all dividends declared upon the Series A Preferred Shares and all dividends declared upon any other class or series of Parity Shares shall not be declared ratably in proportion to the respective amounts of dividends accumulated and unpaid on the Series A Preferred Shares and accumulated and unpaid on such Parity Shares. (f) So long as any Series A Preferred Shares are outstanding, no dividends (other than dividends or distributions paid solely in shares of, or options, warrants or rights to subscribe for or purchase shares of, Junior Shares) shall be declared or paid or Set Apart for Payment or other distribution declared or made upon 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 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 Junior Shares) by the Corporation, directly or indirectly (except by conversion into or exchange for Junior Shares), unless in each case (i) the full cumulative dividends on all outstanding Series A Preferred Shares and any other Parity Shares of the Corporation shall have been paid on, the deficiency shall be fully paid on or declared and set apart Set Apart for Payment for all past Dividend Periods with respect to the Series A Preferred Shares and all past dividend periods with respect to such shares before Parity Shares and (ii) sufficient funds shall have been paid or declared and Set Apart for Payment of the dividend for the current Dividend Period with respect to the Series A Preferred Shares and the current dividend period with respect to such Parity Shares. Any dividend payment on the Series A Preferred Shares shall first be credited against the earliest accrued but unpaid dividend due which remains payable. (g) No distributions on Series A Preferred Shares shall be authorized by the Board of Directors of the Corporation makes or paid or Set Apart for Payment by the Corporation at such time as the terms and provisions of any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares material agreement of the Corporation for cash Indebtedness, prohibits such declaration, payment or property Set Apart for Payment or provides that such declaration, payment or Set 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. In determining whether a distribution (except for an exchange other than upon voluntary or involuntary liquidation), by dividend, redemption or other acquisition of shares of capital stock of the Corporation or shares acquired by otherwise, is permitted under the MGCL, amounts that would be needed, if the Corporation from employees pursuant were to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and dissolved at the time of any distribution by the distribution, to satisfy the preferential rights upon dissolution of holders of shares of Series A Preferred Shares shall not be added to the Corporation’s total liabilities. (h) Anything in these terms of the Series A Preferred Shares to the contrary notwithstanding, nothing in this Section 3 shall prevent the creation, authorization or issuance of up to $200,000 in the aggregate (as determined based upon the aggregate offering price), or purchase or redemption of shares shall be the day cash or property is transferred acquisition by the Corporation, whether of Series A Preferred Shares (or not pursuant Senior Shares or Parity Shares) in order to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares preserve the time qualification of the distribution is the date when the Corporation acquires the shares in such exchange. The Board as a real estate investment trust for federal and/or state income tax purposes or to comply with any applicable listing or continued listing requirements of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysany national securities exchange or automated quotation system.

Dividends. (a) The holders From and after the date of issuance of any share of the outstanding Class A-1 Series B Preferred Stock, a cumulative dividend shall accrue, whether or not declared by the board of directors of this Corporation and whether or not there are funds legally available for the payment of dividends, on a daily basis in arrears at the rate of 8.0% per annum on the sum of the Series B Original Issue Price (as defined below) plus all unpaid accrued and accumulated dividends thereon. All accrued dividends on any share of the Series B Preferred Stock shall be entitled to receivepaid in cash only when, as and if declared by the Board out of funds legally available therefore, cumulative dividends at the annual rate of 6% per annum therefor or upon a liquidation or redemption of the per Series B Preferred Stock in accordance with the provisions of this Certificate of Designation (a); provided, that to the extent not paid on the fifth (5th) calendar day after the last day of each month (each such date, a "Series B Dividend Payment Date"), all accrued dividends on any share purchase price ($1.10) of the Class A-1 Series B Preferred StockStock shall accumulate and compound on the applicable Series B Dividend Payment Date whether or not declared by the board of directors of this Corporation and shall remain accumulated, compounding dividends until paid pursuant hereto or converted pursuant to this Certificate of Designation. Such All accrued and accumulated dividends shall be payable in on the shares of the Company’s Class A-1 Series B Preferred Stock quarterly, on the fifteenth day as accrued pursuant to this Certificate of October, January, April and July Designation (each of such dates being a “Dividend Payment Date”a) commencing on the date of issuance, and shall be pro-rated for prior and in preference to any dividend on any other series of preferred stock or the first such quarterly period if the same is less than 91 Common Stock and (ninety-oneb) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 deficiency shall be fully paid on or declared and set apart for such paid before any dividends are declared and paid, or any other distributions or redemptions are made, on any other series of preferred stock or the Common Stock, other than to declare or pay any dividend or distribution payable on the Common Stock in shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid This Corporation may elect to pay dividends shall not bear interest. “Distribution” for any month with a paid-in-kind election ("PIK") if (i) the issuance of the shares of Common Stock issuable further to the PIK has been registered pursuant to the Securities Act and such registration remains effective, (ii) this Corporation is then in compliance with all listing requirements of the Nasdaq Capital Market and (iii) the average daily trading dollar volume of this section 5 means Corporation’s Common Stock for ten (10) trading days in any period of twenty (20) consecutive trading days on the transfer of cash Nasdaq Capital Market is greater than One Million Five Hundred Thousand Dollars ($1,500,000). (b) Any dividends or property without considerationdistributions, whether by way of dividend other than dividends or otherwise (except a dividend in distributions accruing or paid on shares of the Corporation) or Series B Preferred Stock pursuant to this Certificate of Designation, shall be distributed among all holders of Common Stock and preferred stock in proportion to the purchase or redemption number of shares of the Corporation for cash or property (except for an exchange of Common Stock that would be held by each such holder if all shares of preferred stock were converted to Common Stock at the Corporation or shares acquired by then effective conversion rate without regard to any limitations on the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary conversion of the Corporation. The time preferred stock contained in the Certificate of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysIncorporation.

Dividends. (a) i. The holders of the outstanding Class A-1 Serial Preferred Stock of any series shall be entitled to receive, when and as declared by the Board of Directors, out of surplus or net profits legally available therefor, cumulative dividends at the rate of dividend fixed by the Board of Directors for such series as hereinbefore provided, and no more, payable quarter yearly on the first days of January, April, July and October in each year. The dividends on any shares of Serial Preferred Stock shall be cumulative from such date as shall be fixed for that purpose by the Board of Directors prior to the issue of such shares or, if no such date shall be so fixed by the Board of Directors, from the quarter yearly dividend payment date next preceding the date of issue of such shares. ii. The holders of Class B Serial Preferred Stock of any series shall be entitled to receive, when and as declared by the Board of Directors or any authorized committee thereof, out of funds legally available thereforetherefor, cumulative dividends at the annual rate of 6% per annum dividend fixed by the Board of Directors for such series including any such rate which may be reset or recalculated from time to time pursuant to procedures or formulas established therefor by the Board of Directors, and no more; provided, however, that no dividend shall be declared or paid on the Class B Serial Preferred Stock so long as any of the per share purchase price ($1.10) Serial Preferred Stock remains outstanding, unless all quarter yearly dividends accrued on the Serial Preferred Stock and the dividend thereon for the current quarter yearly dividend period shall have been paid or declared and a sum sufficient for the payment thereof set apart. The dividends on any shares of the Class A-1 B Serial Preferred Stock. Such dividends Stock shall be payable in shares cumulative from such date as shall be fixed for that purpose by the Board of Directors prior to the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each issue of such dates being a “Dividend Payment Date”) commencing on shares or, if no such date shall be so fixed by the Board of Directors, from the dividend payment date for such series next preceding the date of issuance, and shall be pro-rated for the first issue of such quarterly period if the same is less than 91 (ninety-one) daysshares. All If full cumulative dividends on shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case a series of stock on 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 Class B Serial Preferred Stock have 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 deficiency shall be fully paid on or declared and a sum sufficient for the payment thereof set apart for such shares before the Corporation makes any distribution (as hereinafter defined) apart, dividends thereon shall be declared and paid pro rata to the holders of Common Stocksuch series entitled thereto. Accrued but unpaid dividends shall not bear interest. iii. “Distribution” in this section 5 means the transfer The holders of cash or property without considerationCommon Stock shall be entitled to receive dividends, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired when and as declared by the Corporation from employees pursuant to the terms Board of any employee incentive planDirectors, agreement or arrangement) including any such transferprovided, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of however, that no dividend shall be declared or paid on the date Common Stock so long as any of declaration thereof the Preferred Stock remains outstanding, unless all dividends accrued on all classes of Preferred Stock 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date dividend on Serial Preferred Stock for the determination of holders of Class A-1 Preferred Stock entitled to receive current quarter yearly dividend period shall have been paid or declared and a sum sufficient for the payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysthereof set apart.

Dividends. Except as otherwise provided herein, dividends paid in any Trust Year in cash on Company Stock held by the Trust (a) The holders including dividends paid on Released Shares, as defined below, that have not been transferred out of the outstanding Class A-1 Preferred Stock Trust at the time of such dividend payment) shall be entitled applied, immediately upon receipt thereof by the Trustee, (i) first to receive, out of funds legally available therefore, cumulative dividends at the annual rate of 6% per annum interest accrued and unpaid as of the per share purchase price date of any such payment and then, to the extent that any such payment exceeds such accrued and unpaid interest, ($1.10ii) 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 otherwise distributed in accordance with the next sentence, to additional installments of principal in the order of their scheduled maturity. In the event that dividends paid on Company Stock held in the Trust, other than Extraordinary Dividends, exceed the amount of scheduled principal and interest due in any Trust Year, such excess shall, as determined in good faith by the Committee, be (i) applied to prepay, in whole or in part, principal (and accrued interest thereon to the date of such prepayment) of the Class A-1 Preferred StockLoan or (ii) distributed to the Plans and/or to any other broad cross section of individuals employed by the Company. Such dividends Extraordinary Dividends shall not be used to pay interest on or principal of the Loan, but shall be payable invested in shares additional Company Stock as soon as practicable, except as provided below. Dividends which are not in cash or in Company Stock (including Extraordinary Dividends, or portions thereof) shall be reduced to cash by the Trustee and reinvested in Company Stock as 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 3.1 hereof), be deemed to have been acquired with the proceeds of the Loan. In the Trustee's discretion, investments in Company Stock may be made through open-market purchases, private transactions or (with the Company’s Class A-1 Preferred Stock quarterly's consent) purchases from the Company. The Committee may direct the Trustee as to the timing and manner of such purchases in order to comply 11 with applicable law and to avoid, if possible, adverse effects on the fifteenth day publicly traded market price of October, January, April and July (each of such dates being 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 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 Company Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) days.

Dividends. (a) The holders of If on any date while RSUs are outstanding hereunder the outstanding Class A-1 Preferred Stock Company shall pay any cash dividend on the Shares, the Participant shall be entitled to receive, out as of funds legally available thereforesuch dividend payment date, cumulative dividends at a cash payment equal to the annual rate product of 6% per annum (i) the number of Vested RSUs, if any, held by the Participant as of the related dividend record date, multiplied by (ii) the per share purchase price ($1.10) Share amount of such cash dividend. In the case of any dividend declared on Shares that is payable in the form of Shares, the Participant shall be granted, as of the Class A-1 Preferred Stock. Such dividends applicable dividend payment date, a number of Shares (rounded down to the next whole Share) equal to the product of (x) the number of Vested RSUs, if any, that have been held by the Participant through the related dividend record date, multiplied by (y) the number of Shares (including any fraction thereof) payable as a dividend on a Share. (b) If on any date while RSUs are outstanding hereunder the Company shall pay any dividend on the Shares (whether payable in cash, Shares or other securities), the Participant shall be granted, as of the applicable dividend payment date, a number of additional restricted stock units (the “Dividend RSUs”) (rounded down to the next whole unit) equal to the product of (x) the aggregate number of Unvested RSUs that have been held by the Participant through the related dividend record date, multiplied by (y) (A) in the case of a dividend payable in shares Shares, the number of Shares (including any fraction thereof) payable as a dividend on a Share and (B) in the Company’s Class A-1 Preferred Stock quarterlycase of a dividend payable in cash or other securities, on the fifteenth day quotient of October, January, April and July (each I) the amount of such dates being cash dividend payable as a “Dividend Payment Date”dividend on a Share (or fair market value, as determined by the Committee, of such other securities payable as a dividend on a Share), divided by (II) 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average per Share as 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 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 bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 payment date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) days.

Dividends. (a) The holders From and after the date of issuance of any share of the outstanding Class A-1 Series D Preferred Stock, a cumulative dividend shall accrue, whether or not declared by the board of directors of this Corporation and whether or not there are funds legally available for the payment of dividends, on a daily basis in arrears at the rate of 15.0% per annum on the sum of the Series D Original Issue Price (as defined below) plus all unpaid accrued and accumulated dividends thereon. All accrued dividends on any share of the Series D Preferred Stock shall be entitled to receivepaid in cash only when, as and if declared by the Board out of funds legally available therefore, cumulative dividends at the annual rate of 6% per annum therefor or upon a liquidation or redemption of the per Series D Preferred Stock in accordance with the provisions of this Certificate of Designation (a); provided, that to the extent not paid on the fifth (5th) calendar day after the last day of each month (each such date, a "Series D Dividend Payment Date"), all accrued dividends on any share purchase price ($1.10) of the Class A-1 Series D Preferred StockStock shall accumulate and compound on the applicable Series D Dividend Payment Date whether or not declared by the board of directors of this Corporation and shall remain accumulated, compounding dividends until paid pursuant hereto or converted pursuant to this Certificate of Designation. Such All accrued and accumulated dividends shall be payable in on the shares of the Company’s Class A-1 Series D Preferred Stock quarterly, on the fifteenth day as accrued pursuant to this Certificate of October, January, April and July Designation (each of such dates being a “Dividend Payment Date”a) commencing on the date of issuance, and shall be pro-rated for prior and in preference to any dividend on any other series of preferred stock or the first such quarterly period if the same is less than 91 Common Stock and (ninety-oneb) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 deficiency shall be fully paid on or declared and set apart for such paid before any dividends are declared and paid, or any other distributions or redemptions are made, on any other series of preferred stock or the Common Stock, other than to declare or pay any dividend or distribution payable on the Common Stock in shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid This Corporation may elect to pay dividends shall not bear interest. “Distribution” for any month with a paid-in-kind election ("PIK") if (i) the issuance of the shares of Common Stock issuable further to the PIK has been registered pursuant to the Securities Act and such registration remains effective, (ii) this Corporation is then in compliance with all listing requirements of the Nasdaq Capital Market and (iii) the average daily trading dollar volume of this section 5 means Corporation’s Common Stock for ten (10) trading days in any period of twenty (20) consecutive trading days on the transfer of cash Nasdaq Capital Market is greater than Twenty Seven Million Five Hundred Thousand Dollars ($27,500,000). (b) Any dividends or property without considerationdistributions, whether by way of dividend other than dividends or otherwise (except a dividend in distributions accruing or paid on shares of the Corporation) or Series D Preferred Stock pursuant to this Certificate of Designation, shall be distributed among all holders of Common Stock and preferred stock in proportion to the purchase or redemption number of shares of the Corporation for cash or property (except for an exchange of Common Stock that would be held by each such holder if all shares of preferred stock were converted to Common Stock at the Corporation or shares acquired by then effective conversion rate without regard to any limitations on the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary conversion of the Corporation. The time preferred stock contained in the Certificate of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysIncorporation.

Dividends. (ai) The holders Beginning on the Issue Date, the Holders of the outstanding Class A-1 shares of 12.7% Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors, out of funds legally available thereforetherefor, cumulative distributions in the form of cash dividends on each share of 12.7% Preferred Stock, at the annual a rate of 6% per annum equal to 12.7% of the liquidation preference per share purchase price ($1.10) of the Class A-1 12.7% Preferred Stock, payable semi-annually. Such All dividends shall be payable in shares cumulative, whether or not declared, on a daily basis from the date of issuance of the Company’s Class A-1 12.7% Preferred Stock quarterly, and shall be payable semi-annually in arrears on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”, commencing __________, 2001. Dividends declared may be paid, at the Corporation's option, on any Dividend Payment Date either in cash or by the issuance of additional shares of 12.7% Preferred Stock (and, at the Corporation's option, payment of a whole share (after rounding up) commencing or cash in lieu of a fractional share) having an aggregate liquidation preference equal to the amount of such dividends. In the event that dividends are declared and paid through the issuance of additional shares of 12.7% Preferred Stock, as provided in the previous sentence, such dividends shall be deemed paid in full and shall not accumulate. Each dividend shall be payable to the Holders of record as they appear on the stock books of the Corporation on the Dividend Record Date immediately preceding the related Dividend Payment Date. Dividends shall cease to accumulate in respect of the 12.7% Preferred Stock on the date of issuance, and their redemption unless the Corporation 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 12.7% Preferred Stock pursuant to paragraph (c)(i) shall be pro-rated paid pro rata to the Holders entitled thereto. (iii) Nothing herein contained shall in any way or under any circumstances be construed or deemed to require the Board of Directors to declare, or the Corporation to pay or set apart for the first such quarterly period if the same is less than 91 (ninety-one) days. All payment, any dividends on shares of common stock shall the 12.7% Preferred Stock at any time. (iv) Dividends accruing on the 12.7% Preferred Stock for any past Dividend Period and dividends in connection with any optional redemption pursuant to paragraph (e)(i) may be valued declared and paid at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given dateany time, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the without reference to any regular Dividend Payment Date. Such dividends shall accrue , to Holders of record on each such share commencing date, not more than forty-five (45) days prior to the payment thereof, as may be fixed by the Board of Directors. (v) Dividends payable on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such dividends 12.7% Preferred Stock for any period less than a year shall be cumulative so that if such dividends in respect computed on the basis of any previous quarterly dividend period shall not have been paid on, the 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 a 360-day year of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof twelve 30- day months and the time actual number of any distribution by purchase or redemption of shares shall be days elapsed in 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 exchange period for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) dayspayable.

Dividends. (a) The holders RATE. Holders of the outstanding Class A-1 Preferred Stock Series A Preference Shares shall be entitled to receive, only when, as and if declared by the Board of Directors or a duly authorized committee of the Board of Directors, out of available funds legally available thereforefor the payment of dividends under Bermuda law, non-cumulative cash dividends at the annual rate of 65.875% per annum applied to the liquidation preference amount of the US$25,000 per share purchase price ($1.10) of the Class A-1 Preferred StockSeries A Preference Shares. Such dividends shall be payable quarterly in shares arrears (as provided below in this Section 4(a)), but only when, as and if declared by the Board of Directors or a duly authorized committee of the Company’s Class A-1 Preferred Stock quarterlyBoard of Directors, on the fifteenth day March 15, June 15, September 15 and December 15 of Octobereach year (each, January, April and July (each of such dates being a “Dividend Payment Date”) ), commencing on September 15, 2016; 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 the Series A Preference Shares on such Dividend Payment Date shall instead be payable on) the immediately succeeding Business Day. Dividends, if so declared, that are payable on Series A Preference Shares on any Dividend Payment Date will be payable to holders of record of Series A Preference Shares as they appear on the share register of the Company on the applicable record date, which shall be 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 of the Board of Directors that is not more than 60 nor less than 10 days prior to such Dividend Payment Date (each, a “Dividend Record Date”). Any such day that is a Dividend Record Date shall be a Dividend Record Date whether or not such day is a Business Day. Each dividend period (a “Dividend Period”) shall commence on and include a Dividend Payment Date (other than the initial Dividend Period, which shall commence on and include the date of issuanceoriginal issue of the Series A Preference Shares, and shall be pro-rated provided that, for the first any Series A Preference Shares issued after such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given original issue date, the average initial Dividend Period for such shares may commence on and include such other date as the Board of Directors or a duly authorized committee of the closing bid prices for Board of Directors shall determine and publicly disclose at the Company’s common stock for time such additional shares are issued) and shall end on and include the ten trading days immediately calendar day preceding the next Dividend Payment Date. Such Dividends payable on the Series A Preference Shares in respect of any Dividend Period shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Dividends payable in respect of a Dividend Period shall be payable in arrears (i.e., on the first Dividend Payment Date after such Dividend Period). Dividends on the Series A Preference Shares shall be non-cumulative. Accordingly, if the Board of Directors or a duly authorized committee of the Board of Directors does not declare a dividend on the Series A Preference Shares payable in respect of any Dividend Period before the related Dividend Payment Date, in full or otherwise, then such undeclared dividends shall not cumulate and will not accrue on each and will not be payable and the Company shall have no obligation to pay such share commencing undeclared dividends for the applicable Dividend Period on the date of issue, and shall accrue from day related Dividend Payment Date or at any future time or to daypay interest with respect to such dividends, whether or not earned dividends are declared on Series A Preference Shares or declaredany other preference shares the Company may issue in the future. Such dividends shall be cumulative so that if such dividends in respect Holders of any previous quarterly dividend period Series A Preference Shares shall not have been paid onbe entitled to any dividends or other distributions, the deficiency shall be fully paid on whether payable in cash, securities or other property, other than dividends (if any) declared and set apart for such shares before payable on the Corporation makes any distribution Series A Preference Shares as specified in this Section 4 (as hereinafter defined) subject to the holders other provisions of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer Certificate of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysDesignations).

Dividends. (a) If the Corporation declares and pays cash dividends on the Common Stock then, in that event, the holders of shares of Series F Preferred Stock shall be entitled to share in such dividends on a pro rata basis, as if their shares had been converted into shares of Common Stock pursuant to Section 7(a) below immediately prior to the record date for determining the stockholders of the Corporation eligible to receive such dividends. (b) The holders of the outstanding Class A-1 shares of Series F Preferred Stock shall be entitled to receive, out of funds legally available thereforetherefor, cumulative dividends at the an annual rate equal to the excess(if any) of 6(i)9% per annum of the per share purchase price Accreted value over ($1.10ii) any cash dividends paid in accordance with Section 3(a) above, calculated on the basis of the Class A-1 Preferred Stock. Such a 360-day year, consisting of twelve 30-day months, and such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on accrue quarterly from 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 Fair Market Value issuance thereof. As used herein Fair Market Value shall mean in the case of stock on 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 deficiency shall be fully paid on or declared Accrued 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 bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except compound on a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant quarterly basis and be added to the terms Accreted Value of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary each share of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchangeSeries F Preferred Stock. The Board of Directors may fix a record date for the determination of holders of Class A-1 shares of Series F Preferred Stock entitled to receive payment of a dividend declared thereonsuch dividends, which record date shall not be no more than sixty sixty(60) days prior to the applicable dividend payment date. All accrued and unpaid dividends, if any, shall, to the extent funds are legally available therefor, be mandatorily paid immediately prior to the earlier to occur of (60i) daysa Liquidation, (ii) an optional conversion of shares of Series F Preferred Stock pursuant to Section 7(a) below,(iii) an automatic conversion of shares of Series F Preferred Stock pursuant to Section 7(b) below and (iv) a redemption of shares of Series F Preferred Stock pursuant to Section 5 hereof (the "Mandatory Dividend Payment Date"). (c) On the Mandatory Dividend payment Date, all accrued dividends shall be paid,(x) in the case of a Liquidation or a redemption pursuant to Section 5 below, in cash, (y) in the case of an optional conversion or an automatic conversion triggered by a Sale Transaction, in shares of Common Stock or in cash, at the option of the holders of a majority of the shares of the series F Preferred Stock. If dividends are to be paid in shares of Common Stock pursuant to the preceding sentence, the value of such shares shall be determined, (A) in the case of a Sale Transaction (other than as set forth in clause (B), below), by the Net Per Share Price paid for shares of Common Stock on such Sale Transaction or (B) in the case of a Sale Transaction in which no Net Per Share Price is paid for shares of Common Stock or in the case of an optional conversion of shares of Series F Preferred Stock, in good faith by the Board of Directors.

Dividends. (a) The holders of the outstanding Class A-1 shares of Redeemable Preferred Stock shall be entitled to receivereceive cumulative dividends, out of funds legally available thereforetherefor, cumulative dividends at the annual a rate of 6% eleven percent (11%) per annum annum, before any dividend or distribution in cash or other property on common stock or any other class or series of stock of the per share purchase price Corporation shall be declared or paid or set apart for payment. ($1.10b) of Dividends on the Class A-1 Redeemable Preferred Stock. Such dividends shall be payable on March 31, June 30, September 30 and December 31 of each year until the Redeemable Preferred is redeemed in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July full or is otherwise no longer outstanding (each of such dates date being hereinafter individually a “Dividend Payment Date”) commencing ), except that if such date is a Saturday, Sunday or legal holiday then such dividend shall be payable on the date first immediately preceding calendar day which is not a Saturday, Sunday or legal holiday, to holders of issuance, and shall be pro-rated for record as they appear on 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average books of the closing bid prices for the Company’s common stock for the ten trading Corporation on such respective dates, not exceeding sixty (60) days immediately preceding the such Dividend Payment Date, as may be determined by the Board of Directors in advance of the payment of each particular dividend. Such Dividends in arrears may be declared and paid at any time, without reference to any regular Dividend Payment Date, to holders of record on such date 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 Redeemable Preferred for each dividend period shall accrue on each such share commencing be computed by dividing the annual rate of 11% by four. Dividends payable on the date Redeemable Preferred for the initial dividend period and for any other period less than a full quarterly period shall be computed and prorated on the basis of issuea 360-day year of twelve 30-day months. (c) If the Corporation is unable to pay a dividend on a Dividend Payment Date, the dividend shall be cumulative and shall accrue from day to dayand after the date of original issuance thereof, whether or not earned or declareddeclared by the Board of Directors. Such Accrued dividends shall bear interest at a rate of eleven percent (11%) per annum. (d) No cash dividend may be cumulative so that if such declared on any other class or series of stock ranking on junior to the Redeemable Preferred as to dividends in respect of any previous quarterly dividend period unless there shall not also be or have been declared and paid onon Redeemable Preferred accrued, unpaid dividends for all quarterly periods coinciding with or ending before such quarterly period, ratably in proportion to the respective annual dividend rates fixed therefor. (e) Dividends on the Redeemable Preferred shall be paid in cash. (f) Notwithstanding anything contained herein to the contrary, until the payment in full in cash of all of the Obligations (as defined in the Credit Agreement) owing under that certain Amended and Restated Credit Agreement dated as of May 31, 2013 (as amended, restated, supplemented, replaced, extended, refinanced in whole or in part or otherwise modified from time to time, the deficiency shall be fully paid on or declared “Credit Agreement”), by 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 bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 among the Corporation, whether Fifth Third Bank, as Administrative Agent and a Lender, and the other Lenders from time to time party thereto, the Corporation shall not pay any cash dividends unless the following conditions are satisfied, in each case, both before and after giving effect to the payment of such cash Dividend: (i) no Default or not pursuant to a contract Event of an earlier date; provided that where a negotiable debt security is issued Default (each as defined in exchange for shares the time Credit Agreement) shall have occurred and be continuing, and (ii) the Corporation shall be in pro forma compliance with the covenants set forth in Section 6.20 of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysCredit Agreement.

Dividends. (a) The holders of record of the then outstanding Class A-1 Series A Preferred Stock Shares shall be entitled to receivereceive when, as and if declared by the Board, but in any event not prior to the third anniversary of the Original Issue Date, out of the funds legally available thereforetherefor, cumulative dividends at the annual rate of 68% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 Dateshare. Such dividends shall accrue on each such share commencing on Series A Preferred Share from and after the date third anniversary of issuethe Original Issue Date, and shall accrue from day to day, whether or not earned or declared, and shall be payable in cash. Such dividends will in no event be declared or paid by the Company prior to the payment in full of those certain Senior Subordinated Promissory Notes issued by the Company pursuant to that certain Securities Purchase Agreement, dated January 8, 1996, by and between the Company and HealthPlan Services Corporation (the "Securities Purchase Agreement"). (b) Subject to the provisions of this paragraph 2 of this Section I, the provisions of the Securities Purchase Agreement and the provisions of a Shareholders Agreement among the Company and certain shareholders of the Company, as the same may be amended from time to time, the Company may, in the Board's discretion, declare and pay dividends or distributions, or make provision for the payment thereof, on any equity security of the Company, but only if all accrued dividends and distributions on the Series A Preferred Shares and the Series B Preferred Shares shall be cumulative so that if such dividends in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) made in full prior to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and any such declaration, payment, provision or distribution. (c) Notwithstanding anything in the time of any distribution by purchase or redemption of shares foregoing to the contrary, no dividends shall be declared, paid or distributed, or provision therefor made, on any Common Shares, unless simultaneously therewith there also shall be declared, paid or distributed, or provision therefor made, as the day cash case may be, a dividend or property is transferred by the Corporation, whether or not pursuant distribution pro rata on each then outstanding Series A Preferred Share to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time each holder thereof. For purposes of the distribution is foregoing, the date when the Corporation acquires the shares in number of Series A Preferred Shares deemed to be outstanding with respect to each such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date holder shall be no more than sixty (60) days.equal to the maximum number of Common Shares into which such holder's Series A Preferred Shares would then be convertible upon exercise of the Conversion Rights described in paragraph 5 of this Section I.

Dividends. (a) The 2.1 Subject to the rights of the holders of any shares of Senior Stock, the outstanding Class A-1 holders of shares of Series A Preferred Stock Stock, in preference to the holders of any shares of Junior Stock, shall be entitled to receive, when, as and if declared by the Board of Directors out of funds of the Company legally available thereforetherefor, cumulative cash dividends on each outstanding share of Series A Preferred Stock, payable quarterly, in arrears, at the an annual rate of 64.0% per annum of the per share purchase price Liquidation Preference ($1.10the "Dividend Rate"). Dividends payable for each full dividend period will be computed by dividing (x) the product of (i) the Class A-1 Preferred Stock. Such dividends Liquidation Preference and (ii) the Dividend Rate by (y) four and shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”) , to the holders of record of Series A Preferred Stock at the close of business on the Dividend Record Date applicable to such 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the First Dividend Payment Date. Such dividends shall accrue be cumulative from the First Dividend Payment Date. Dividends on the Series A Preferred Stock which are not declared and paid when due will compound quarterly on each such share commencing Dividend Payment Date at the Dividend Rate. Dividends payable for any partial dividend period shall be computed on the date basis of issueactual days elapsed over a 360-day year consisting of twelve 30-day months. 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-by-share basis among all such shares at the time outstanding. 2.2 Holders of shares of Series A Preferred Stock shall not be entitled to any dividends in excess of full 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 which may be in arrears (it being understood that the compounding of unpaid dividends shall not constitute interest or money in lieu of interest). 2.3 Whenever quarterly dividends payable on shares of Series A Preferred Stock are in arrears, thereafter and shall accrue from day to dayuntil all accrued and unpaid dividends, whether or not earned or declared. Such dividends , on the outstanding shares of Series A Preferred Stock shall be cumulative so that if such dividends in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on in full or declared and set apart for such payment, the Company shall not: (i) declare or pay dividends, or make any other distributions, on any shares before of Junior Stock other than dividends or distributions payable in Junior Stock ; or (ii) declare or pay dividends, or make any other distributions, on any shares of Parity Stock, except (1) dividends or distributions payable in Junior Stock and (2) dividends or distributions paid ratably on the Corporation makes any distribution (as hereinafter defined) Series A Preferred Stock and all Parity Stock on which dividends are payable or in arrears, in proportion to the total amounts to which the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in all shares of the Corporation) or the purchase or redemption of Series A Preferred Stock and such Parity Stock are then entitled. 2.4 Whenever quarterly dividends payable on shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive planSeries A Preferred Stock are in arrears, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof thereafter and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporationuntil all Accumulated Dividends, whether or not pursuant to a contract declared, on the outstanding shares of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Series A Preferred Stock entitled to receive payment shall have been paid in full or declared and set apart for payment, the Company shall not: (i) redeem or purchase or otherwise acquire for consideration any shares of a dividend declared thereon, which record date shall be no more than sixty Junior Stock or Parity Stock; or (60ii) dayspurchase or otherwise acquire for consideration any shares of Series A Preferred Stock.

Dividends. (a) The holders of No dividends or other distributions declared after the outstanding Class A-1 Preferred Effective Time on AFC Common Stock shall be entitled paid with respect to receive, out of funds legally available therefore, cumulative dividends at the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in any shares of AFC Common Stock represented by an APY Stock Certificate until such APY Stock Certificate is surrendered for exchange according to the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being 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) daysprocedures described above. All No fractional shares of common stock shall AFC Common Stock will be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 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 bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees issued pursuant to the terms Merger. In lieu of the issuance of any employee incentive planfractional shares of AFC Common Stock, agreement or arrangement) including any cash will be paid to holders of such transfer, purchase or redemption by a subsidiary fractional share in the amount of the Corporation. The time product of any distribution by way of dividend shall be 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 such fractional share multiplied by the Corporation, whether or not pursuant Average Stock Price. THE RECAPITALIZATION APY is currently authorized to a contract issue only one class of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchangeAPY Common Stock. The Board of Directors may fix of APY has approved, and SMA, the holder of more than a record date majority of the 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 Merger, 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 remain outstanding after the determination Merger. See "The Charter Amendment" and "Appendix A-2--Form of holders 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 Merger Agreement and related agreements; (iii) authorized capital stock; (iv) ownership of Class A-1 Preferred Stock entitled to receive subsidiaries; (v) the lack 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; (vii) compliance with law and contract; (viii) the filing of certain documents with the Commission; (ix) the accuracy of financial statements; (x) the absence of certain litigation; (xi) the absence of certain changes including those having a material adverse effect, the payment of dividends other than regular quarterly cash dividends and a dividend declared thereonchange in accounting policy; (xii) the receipt of fairness opinions; and (xiii) the lack of any contract or agreement obligating the payment of finder's fees, which record date shall be brokerage or agent's commissions, other than agreements with Salomon Brothers and ▇▇▇▇▇▇▇ ▇▇▇▇▇. In addition, AFC represents that (i) immediately following the Effective Time, it will have available funds to satisfy the cash portion of the Merger Consideration; and (ii) to its knowledge, no more than sixty (60) days.event has occurred or condition exists in connection with the Merger that would cause it to fail to satisfy any material applicable statute or written regulation. CERTAIN COVENANTS Conduct of Business Pending the Reorganization. Pursuant to the Merger Agreement, AFC and APY have made various customary covenants relating to the Merger Transactions. APY has agreed that, prior to the 46

Dividends. (a) The holders of the outstanding Class A-1 Preferred Stock Holders shall be entitled to receive, out of funds legally available therefore, cumulative receive dividends at the annual rate of 6% Dividend Rate per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock annum, compounded quarterly, on the fifteenth day of October, January, April and July (each of such dates being 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 from the Issue Date and shall be added daily to the Liquidation Preference. The dividends per share of Preferred Stock for any full quarterly period shall be computed by multiplying the Dividend Rate for such Dividend Period by the Liquidation Preference (determined as of the first day of such Dividend Period) per share and dividing the result by four. Dividends payable for any period less than a full quarterly Dividend Period shall be computed on the basis of a 360-day year of twelve 30-day months and the actual number of days elapsed for any period less than one month. (b) In addition to the dividends specified in subparagraph 2(a) above, if dividends are declared or paid on the Common Stock, then such dividends in respect shall be declared and paid pro rata on the Common Stock and the Preferred Stock, treating each share of Preferred Stock as the greatest whole number of shares of Common Stock then issuable upon conversion thereof pursuant to paragraph 5 below. (c) So long as any previous quarterly dividend period shares of Preferred Stock shall be outstanding, the Corporation shall not have been paid on, the deficiency shall be fully paid on (i) declare or declared and set apart for such shares before the Corporation makes pay any dividend or make any distribution (as hereinafter defined) to the holders of Common on any Junior Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend in cash, property or otherwise (except a dividend other than dividends payable in shares of the Corporationclass or series upon which such dividends are declared or paid, or payable in shares of Common Stock with respect to Junior Stock for which an adjustment is made pursuant to subparagraph 5(e)(i) hereof) or (ii) purchase or redeem, or permit any Subsidiary to purchase or redeem any Junior Stock (except by conversion into or exchange solely for shares of Common Stock), or pay or make available any monies for a sinking fund for the purchase or redemption of any Junior Stock, other than up to 2,000,000 shares of Common Stock from employees of the Corporation for cash who are not directors or property (except for an exchange of shares executive officers of the Corporation or shares acquired by the Corporation from employees pursuant to the terms upon termination of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of employment with the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) days.

Dividends. (a) The holders From and after the first date of issuance of any Preferred Shares (the “Initial Issuance Date”), dividends (“Dividends”) on the Preferred Shares shall commence accruing at the Dividend Rate and shall be computed on the basis of a 360-day year and twelve 30-day months and shall be payable in arrears for on the first calendar day of each calendar month (each, an “Dividends Date”) with the first Dividends Date being the first calendar day of the outstanding Class A-1 Preferred Stock calendar month immediately following the Initial Issuance Date. Dividends shall be entitled payable on each Dividends Date, to receiveeach record holder of Preferred Shares (each, a “Holder” and collectively, the “Holders”), in shares of Common Stock (“Dividends Shares”); provided however, that the Company may, at its option following notice to the Holders, pay Dividends on any Dividends Date in cash (“Cash Dividends”) out of funds legally available therefore, cumulative dividends at therefor (with any Cash Dividends required to be paid hereunder and not legally available therefor added to the annual rate of 6% per annum Stated Value of the per Preferred Shares on the applicable Dividend Date) or in a combination of Cash Dividends and Dividends Shares. The Company shall deliver a written notice (each, an “Dividends Election Notice”) to each Holder on or prior to the eleventh (11th) Trading Day prior to the applicable Dividend Date (the date such notice is delivered to all of the Holders, the “Dividends Notice Date”) which notice (i) either (A) confirms that Dividends to be paid on such Dividends Date shall be paid entirely in Dividends Shares or (B) elects to pay Dividends as Cash Dividends or a combination of Cash Dividends and Dividends Shares and specifies the amount of Dividends that shall be paid as Cash Dividends and the amount of Dividends, if any, that shall be paid in Dividends Shares and (ii) certifies that there has been no Equity Conditions Failure. If an Equity Conditions Failure has occurred as of the Dividends Notice Date, then unless the Company has elected to pay such Dividends as Cash Dividends, the Dividend Election Notice shall indicate that unless the applicable Holder waives the Equity Conditions Failure, the Dividends of the Preferred Shares of such Holder shall be capitalized hereunder and, as of such Dividend Date, shall increase the Stated Value of the Preferred Shares of such Holder on a dollar-for-dollar basis. Notwithstanding anything herein to the contrary, if no Equity Conditions Failure has occurred as of the Dividends Notice Date but an Equity Conditions Failure occurs at any time prior to the Dividends Date, (A) the Company shall provide each Holder a subsequent notice to that effect and (B) the applicable Holder waives the Equity Conditions Failure, the Dividends of the Preferred Shares of such Holder shall be capitalized hereunder and, as of such Dividend Date, shall increase the Stated Value of the Preferred Shares of such Holder on a dollar-for-dollar basis. Dividends to be paid on an Dividends Date in Dividends Shares shall be paid in a number of fully paid and nonassessable shares (rounded to the nearest whole share purchase price ($1.10in accordance with Section 4(a)) of Common Stock equal to the Class A-1 Preferred Stock. Such dividends quotient of (1) the amount of Dividends payable on such Dividends Date less any Cash Dividends paid and (2) the Alternate Conversion Price in effect on the applicable Dividends Date. (b) When any Dividends Shares are to be paid on an Dividends Date, the Company shall be payable in shares of (i) (A) provided that the Company’s Class A-1 Preferred Stock quarterlytransfer agent (the “Transfer Agent”) is participating in the Depository Trust Company (“DTC”) Fast Automated Securities Transfer Program, credit such aggregate number of Dividends Shares to which the applicable 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 the DTC Fast Automated Securities Transfer Program (“FAST”), issue and deliver on the fifteenth day of Octoberapplicable Dividends Date, Januaryto the address set forth in the register maintained by the Company for such purpose pursuant to the Securities Purchase 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 Dividends Date, April and July (each a certificate, registered in the name of such dates being a “Dividend Payment Holder or its designee, for the number of Dividends Shares to which such Holder shall be entitled and (ii) with respect to each Dividends Date”, pay to such Holder, in cash by wire transfer of immediately available funds, the amount of any Cash Dividends. (c) commencing Prior to the payment of Dividends on an Dividends Date, Dividends on the date of issuance, and Preferred Shares 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 accrue at the Fair Market Value thereof. As used herein Fair Market Value shall mean Dividend Rate and be payable by way of inclusion of the Dividends in the case Conversion Amount on each Conversion Date in accordance with Section 4(c)(i) or upon any redemption in accordance with Section 5(d) or any required payment upon any Bankruptcy Triggering Event or in accordance with Section 6(b) in connection with any Change of stock on Control. From and after the occurrence and during the continuance of any Triggering Event (regardless of whether the Company has delivered an Triggering Event Notice to a given dateHolder or if such Holder has otherwise notified the Company that an Triggering Event has occurred), the average of Dividend Rate shall automatically be increased to eighteen percent (18.0%) per annum (the closing bid prices “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 common stock for failure to pay such Dividends at the ten trading days Default Rate on the applicable Dividends Date), the adjustment referred to in the preceding sentence shall cease to be effective as of the calendar day immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on following the date of issue, such cure; provided that the Dividends as calculated and unpaid at such increased rate during the continuance of such Triggering Event shall accrue from day continue 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 deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) apply to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant extent relating to the terms days after the occurrence of any employee incentive plan, agreement or arrangement) such Triggering Event through and including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and such cure of such Triggering Event. (d) Notwithstanding the time of any distribution by purchase or redemption of shares shall foregoing, additional Dividends may be the day cash or property is transferred declared by the CorporationBoard on the Preferred Shares, whether or not pursuant from time to a contract of an earlier date; provided that where a negotiable debt security is issued time, in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysits sole and absolute discretion.

Dividends. (a) The holders From and after the date of the outstanding Class A-1 issuance of each Series A Preferred Stock Share, Holders shall be entitled to receivereceive in respect of each such Series A Preferred Share cumulative dividends accruing on a quarterly basis at the Dividend Rate on the Current Liquidation Preference of such Series A Preferred Share as in effect from time to time, out of funds whether or not the Company has assets legally available thereforeto make payment thereof. With respect to any Regular Dividend Payment Date, the Company may declare and pay such cumulative dividends dividends, to the extent permitted by Applicable Law, at the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterlysole discretion, to the Holders in cash in arrears on the fifteenth day of October, January, April and July (each of such dates being a “Regular Dividend Payment Date”) commencing ; provided that, to the extent any such cumulative dividends are not paid to the Holders in cash on any Regular Dividend Payment Date, they shall automatically and without any action by the date of issuanceCompany or the Board, be compounded in arrears and shall be pro-rated added to the Current Liquidation Preference effective as of such Regular Dividend Payment Date. For the avoidance of doubt, dividends shall not accrue in respect of Series A Preferred Shares for any period less than a quarterly interval. (b) Each dividend on the Series A Preferred Shares shall be paid pro rata to the Holders entitled thereto. The record date for payment of Regular Dividends will be the date that is the fifteenth (15th) calendar day before the applicable Regular Dividend Payment Date, whether or not such date is a Business Day, and dividends shall only be payable to holders of record of the Series A Preferred Shares as such holders appear on the stock register of the Company at the Close of Business on the related record date. (c) Except as set forth in Section 2.2(a) in respect of the compounding of accrued dividends if not paid in cash on the applicable Regular Dividend Payment Date, no Regular Dividend may be declared with respect to the Series A Preferred Shares unless paid to the Holders immediately on the Regular Dividend Payment Date in cash (it being understood that no Regular Dividends may be declared and paid in securities or otherwise “in kind”). (d) If the Conversion Date for any Series A Preferred Shares is prior to the Close of Business on a record date set for the first payment of any Regular Dividends, the Holder of such quarterly period if shares will not be entitled to such Regular Dividend in respect of such record date. If the same Conversion Date for any Series A Preferred Shares is less than 91 (ninety-one) days. All on or after the Close of Business on a record date set for payment of any Regular Dividends and prior to the applicable Regular Dividend Payment Date, the Holder of such shares as of common stock such record date shall be valued entitled to receive such Regular Dividend, notwithstanding the conversion of such shares prior to the applicable Regular Dividend Payment Date. (e) The payment of any dividend, whether a Regular Dividend or otherwise, including accrued or deemed dividend amounts payable at the Fair Market Value thereoftime of redemption of the Series A Preferred Shares, shall be made net of any required U.S. income tax withholding. As used herein Fair Market Value shall mean If a Holder is entitled to an exemption from or reduction of U.S. income withholding tax either (l) as a resident for tax purposes including in the case of stock on the United States, a given date, the average disregarded entity (as defined in Treasury Regulation Section 301.7701-3 of the closing bid prices for Code) owned by a resident of the United States, or as a person that is engaged in a trade or business in the United States, or (2) under a treaty between the U.S. and a jurisdiction to which the Holder is otherwise subject to the benefits thereunder, then such Holder shall deliver to the Company’s common stock for , at the ten trading days immediately preceding time or times prescribed by Applicable Law or reasonably requested by the Dividend Payment DateCompany, such properly completed and executed documentation prescribed by Applicable Law as will permit such payments to be made without withholding or at a reduced rate of withholding. Such dividends In addition, a Holder, if requested by the Company, shall accrue on each deliver such share commencing on other documentation prescribed by Applicable Law or reasonably requested by the date of issue, and shall accrue from day Company as will enable the Company to day, determine whether or not earned such Holder is subject to backup withholding or declaredinformation reporting requirements. Such dividends shall If the Company is unable to satisfy its withholding obligation with respect to any amount required to be cumulative so that if such dividends in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid withheld on or declared and set apart for such shares before the Corporation makes any distribution or deemed distribution to a Holder, such Holder shall indemnify the Company for any taxes imposed by any Governmental Authority. (f) Without limiting the generality of the foregoing, if a Holder is a resident for tax purposes in the United States, engaged in the conduct of a trade or business in the United States, a disregarded entity (as hereinafter defineddefined in Treasury Regulation Section 301.7701-3 of the Code) owned by a resident of the United States, or otherwise subject to tax in the United States (each, a “U.S. Holder”), such U.S. Holder shall deliver to the holders Company duly completed copies of Common StockInternal Revenue Service Form W-9 certifying that such U.S. Holder is exempt from U.S. federal backup withholding tax. Accrued but unpaid dividends Any Holder who is not a U.S. Holder shall not bear interest. “Distribution” in this section 5 means deliver to the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares Company whichever of the Corporationfollowing is applicable: (i) duly completed copies of Internal Revenue Service Form W-8BEN or the purchase or redemption of shares of the Corporation W-8BEN-E, as applicable, claiming eligibility for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 benefits of an earlier date; provided that where income tax treaty to which the United States is a negotiable debt security is issued party, (ii) duly completed copies of Internal Revenue Service Form W-8ECI, (iii) duly completed copies of Internal Revenue Service Form W-8IMY, accompanied by Internal Revenue Service Form W-8ECI, W-8BEN, W-8BEN-E, Form W-9, or other certification documents, as applicable, or (iv) any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in exchange for shares United States federal withholding tax duly completed together with such supplementary documentation as may be prescribed by Applicable Law to permit the time of Company to determine the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled withholding or deduction required to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysmade.

Dividends. (a) The holders of the outstanding Class A-1 Preferred Stock Subject to applicable law, except for share capitalizations or distributions for which adjustments are to be made pursuant to Section 7, Holders shall be entitled to 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 same 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 therefore, cumulative dividends therefor under applicable corporate law at the annual rate of 6% fourteen percent (14%) per annum of the per share purchase price outstanding Stated Value of such Preference Share, which shall be payable annually in arrears on September 30 ($1.10a “Cash Dividend”) of each year (unless any such day is not a Business Day, in which event such Cash Dividend shall be payable on the Class A-1 Preferred Stocknext succeeding Business Day, without accrual to the actual payment date), initially commencing to accrue on the 2023 Meeting date and ending on the Nasdaq Approval Date. Such Any Cash Dividend which is payable on the Preference Shares pursuant to this Section 3 for any period shall be computed on the basis of a 360 day year and the actual number of days elapsed. No other dividends shall be payable paid on the Preference Shares. In the event that the Company is prohibited from paying any Cash Dividend under the applicable corporate law, the Company shall so notify to the Holder in shares writing setting forth the basis therefor, and in connection therewith, the Company shall issue and deliver to the 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 Cash Dividend payment date, (ii) discharge in full the Company’s Class A-1 Preferred Stock quarterly, obligation to pay such Prohibited Cash Dividend and no Cash Dividend shall be deemed to have accrued and (iii) accrual of simple interest at 14% per annum shall be computed on basis of a 360 day year and the actual number of days elapsed. The Company shall not pay any dividends on the fifteenth day of October, January, April Ordinary Shares unless the Company simultaneously complies with this provision and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuance, and shall be pro-rated for the first such quarterly period if the same no 14% Note is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 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 bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysoutstanding.

Dividends. (a) The holders Each share of the outstanding Class A-1 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 computed on the 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 each year on the last day of June (the "Dividend Payment Date") in the amount accrued to receivesuch Dividend Payment Date; provided, 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 thereforetherefor, cumulative dividends at when and as declared by the annual rate Board of 6% per annum Directors with respect to such classes of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends stock; provided, however, that no dividend or other distribution shall be payable in declared or paid on shares of Common Stock unless an equivalent dividend or distribution on the Company’s Class A-1 outstanding shares of 9% Convertible Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 deficiency shall be fully paid on or declared and a sum sufficient for the payment thereof set apart for such apart. For purposes of the declaration or payment of dividends or other distributions, a dividend or distribution on shares before of 9% Convertible Preferred Stock shall be deemed "equivalent" to a dividend or distribution on shares of Common Stock if the Corporation makes any dividend or distribution (as hereinafter defined) declared or paid on each outstanding share of 9% Convertible Preferred Stock entitles the holder thereof to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means same money or other property to which the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of holder would have been entitled if the Corporation) or holder held the purchase or redemption number of shares of the Corporation for cash or property (except for an exchange Common Stock into which such share of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 9% Convertible Preferred Stock entitled to receive payment of a dividend declared thereonis then convertible or, which record date shall be no more than sixty (60) daysif the Conversion Period is not then in effect, would have been convertible if the Conversion Period was then in effect.

Dividends. (a) The holders Commencing on the Issue Date, Holders of the shares of outstanding Class A-1 Series B Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors out of funds of the Corporation legally available thereforetherefor, subject to Section 4(f), pari passu with (and otherwise with the same treatment in all respects as that of) the Corporation’s Mandatorily Convertible Cumulative Perpetual Preferred Stock, Series C (the “Series C Preferred Stock”) cumulative dividends in arrears at the annual rate of 6% per annum of the 15% per share purchase price on (i) the Liquidation Amount (equivalent to $1.101,500.00 per annum per share) and (ii) the amount of accrued and unpaid dividends from any prior Dividend Period on each such share of Series B Preferred Stock, payable semi-annually on each Dividend Payment Date beginning on the Dividend Payment Commencement Date until the Conversion Date. Dividends shall be payable, at the option of the Class A-1 Corporation, in cash or in kind through the issuance of additional shares of Series B Preferred Stock (a “PIK Dividend”). Notwithstanding the foregoing sentence, if due to the Ownership Limit as provided in Section 5(a) below, any outstanding shares of Series B Preferred Stock are not converted on the Conversion Date, each such share of Series B Preferred Stock, while outstanding, shall, upon and following the Conversion Date bear cumulative dividends payable, when, as and if declared by the Corporation’s board of directors, at the same date and in amounts equal to the number of shares of Common Stock into which each share of Series B Preferred Stock is then convertible, multiplied by the dividend declared and payable per share of Common Stock. Such dividends shall Dividends will be payable in shares on a Dividend Payment Date to Holders that are Record Holders of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of applicable Record Date with respect to such dates being a “Dividend Payment Date”) commencing , but only to the extent a dividend has been declared to be payable 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 If any Dividend Payment Date is not a Business Day, the dividend payable on such date shall accrue on each such share commencing be paid on the date next Business Day without adjustment and without interest. Accumulations 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 on shares of any previous quarterly dividend period shall not have been paid on, the 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 Series B Preferred Stock shall not bear interest. “Distribution” in this section 5 means Dividends payable for any period other than a full Dividend Period (based on the transfer number of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of actual days elapsed during the Corporationperiod) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be computed on the date basis of declaration thereof and the time days elapsed over a 360-day year consisting of any distribution by purchase or redemption of shares shall be the twelve 30-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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysmonths.

Dividends. (ai) The holders of Beginning on the outstanding Class A-1 Preferred Stock Issue Date, each Holder shall be entitled to receive, when, as and if declared by the Board of Directors, out of funds legally available thereforetherefor, cumulative distributions in the form of dividends on each whole or fractional share of Series A Preferred Stock, at the annual a rate of 6% per annum of the per share purchase price equal to ten and seven-eighths percent ($1.1010 7/8%) of the Class A-1 Liquidation Preference per share of the Series A Preferred Stock, payable quarterly. Such All dividends with respect to each whole or fractional share of Series A Preferred Stock shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 daycumulative, whether or not earned or declared. Such dividends , on a daily basis from the Issue Date with respect to such whole or fractional share, and shall be cumulative so 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 any previous quarterly dividend period shall not have been paid on, the 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 bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation 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 cash or property redemption. (except 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 an exchange 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 Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend Series A Preferred Stock shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment the dividends 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 shall be entitled to receive the dividends provided for in paragraph (c)(i) hereof on a pro rata basis with respect to any dividends upon any Parity Securities. (vi) Dividends payable on shares of the Series A Preferred Stock for any period less than a year shall be computed on the basis of a dividend declared thereon360-day year of twelve 30-day months. If any Dividend Payment Date occurs on a day that is not a Business Day, which record date any accrued dividends otherwise payable on such Dividend Payment Date shall be no more than sixty (60) dayspaid on the next succeeding Business Day.

Dividends. The ▇▇▇▇▇ Incentive Plan (aand any similar ▇▇▇▇▇ plan) The holders and all ▇▇▇▇▇ Stock Options and ▇▇▇▇▇ SARs that are issued thereunder shall be amended, effective as of and contingent upon the occurrence of the outstanding Class A-1 Preferred Closing, to provide (or shall provide, if issued after the Closing) that, upon the date (the “Dividend Date”) of payment of any extraordinary cash dividend or other extraordinary dividend on ▇▇▇▇▇ Common Stock to ▇▇▇▇▇ shareholders generally (the amount payable on each share shall be entitled referred to receiveherein as a “Dividend”), out of funds legally available therefore▇▇▇▇▇ shall, cumulative dividends at the annual rate of 6% per annum with respect to each ▇▇▇▇▇ Stock Option and ▇▇▇▇▇ SAR that is outstanding as of the per share purchase price Dividend Date, distribute to the holder thereof ($1.10the “Optionee”), with respect to the ▇▇▇▇▇ Stock Options and ▇▇▇▇▇ SARs that are vested on or before the Dividend Date, an amount in cash (the “Dividend Equivalent Amount”) equal to the Dividend multiplied by the number of shares subject to such vested ▇▇▇▇▇ Stock Option or ▇▇▇▇▇ SAR. With respect to the ▇▇▇▇▇ Stock Options and ▇▇▇▇▇ SARs that are not vested on or before the Dividend Date, ▇▇▇▇▇ shall credit to a deferred compensation or similar account an amount (the “Deferred Dividend Amount”) equal to the Dividend multiplied by the number of shares of ▇▇▇▇▇ Common Stock subject to such unvested ▇▇▇▇▇ Stock Option or ▇▇▇▇▇ SAR. The Deferred Dividend Amount and earnings thereon will be distributed to the Optionee on the second anniversary of the Dividend Date or, if earlier, upon the death, Disability or Retirement (each as defined in the ▇▇▇▇▇ Incentive Plan) or termination by ▇▇▇▇▇ Plastics Corporation (together with its subsidiaries, the “Company”) without Cause (as defined in the ▇▇▇▇▇ Incentive Plan) or by the Optionee for Good Reason (each of the above events, collectively, a “Good Termination”) or upon a Change in Control (as defined in the ▇▇▇▇▇ Incentive Plan) of the Class A-1 Preferred Stock. Such dividends Surviving Corporation (but only with respect to that number of ▇▇▇▇▇ Stock Options and ▇▇▇▇▇ SARs that vest as a result of the occurrence of such Change in Control); provided, however, that the Deferred Dividend Amount payable to the Optionee shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being 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 Fair Market Value thereof. As used herein Fair Market Value shall mean forfeited in the case of stock on event that Optionee’s employment is terminated other than in 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 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 bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysGood Termination.

Dividends. (a) The holders of the outstanding Class A-1 Preferred Stock Holders shall be entitled to receive, out of funds legally available thereforetherefor, and the Corporation shall pay, cumulative dividends at the annual rate per share (as a percentage of 6the Stated Value per share) of 4% per annum annum, payable in arrears on each Conversion Date (as defined in Section 5(a)(i)) and/or such other date as the Corporation may determine from time to time for each such share, in cash or by accretion of the per share purchase price ($1.10) Stated Value. Subject to the terms and conditions herein, the decision whether to accrete dividends hereunder to the Stated Value or to pay for dividends in cash shall be at the discretion of the Class A-1 Corporation. The Corporation shall provide the Holders written notice of its intention to accrete dividends hereunder to the Stated Value or pay dividends in cash not more than ninety days after the end of each fiscal year of the Corporation or within five Trading Days after a Conversion Date, as the case may be, for so long as shares of Preferred StockStock are outstanding (the Corporation may indicate in such notice that the election contained in such notice shall continue for later periods until revised). Such dividends Failure to timely provide such written notice shall be payable in shares of deemed (if permitted hereunder) an election by the Company’s Class A-1 Corporation to accrete dividends hereunder to the Stated Value. Dividends on the Preferred Stock quarterly, shall be calculated on the fifteenth basis of a 360-day of Octoberyear, January, April and July (each of such dates being a “Dividend Payment Date”) shall accrue annually commencing on the date this Certificate of issuanceDesignation is filed with the Secretary of State of the State of Nevada (the"Filing Date"), 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 deemed to accrue from day to day, such date whether or not earned or declareddeclared and whether or not there are profits, surplus or other funds of the Corporation legally available for the payment of dividends. Such Except as otherwise provided herein, if at any time the Corporation pays less than the total amount of dividends then accrued on account of the Preferred Stock, such payment shall be cumulative so distributed ratably among the Holders based upon the number of shares of Preferred Stock held by each Holder. Any dividends to be paid in cash hereunder that if are not paid within three Trading Days (as defined in Section 7) following a Conversion Date shall continue to accrue and shall entail a late fee, which must be paid in cash, at the rate of 12% per annum or the lesser rate permitted by applicable law (such fees to accrue daily, from the date such dividend is due hereunder through and including the date of payment). (b) Notwithstanding anything to the contrary contained herein, the Corporation must pay dividends in cash if: (i) the number of shares of Common Stock (as defined in Section 7) at the time authorized, unissued and unreserved for all purposes is insufficient to accrete such dividends to the Stated Value and permit conversion in respect full of all outstanding Stated Value; or (ii) the Common Stock is not then listed or quoted on the Nasdaq Small-Cap Market or on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market (each, a "Principal Market") or the over-the-counter market (the "OTC Market"). (c) So long as any previous quarterly dividend period Preferred Stock shall not have been paid onremain outstanding, the deficiency shall be fully paid on or declared and set apart for such shares before neither the Corporation makes nor any subsidiary thereof shall redeem, purchase or otherwise acquire directly or indirectly any Junior Securities (as defined in Section 7), nor shall the Corporation directly or indirectly pay or declare any dividend or make any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of other than a dividend or otherwise (except a dividend distribution described in shares Section 5 or dividends due and paid in the ordinary course on preferred stock of the CorporationCorporation at such times when the Corporation is in compliance with its payment and other obligations hereunder) upon, nor shall any distribution be made in respect of, any Junior Securities, nor shall any monies be set aside for or applied to the purchase or redemption (through a sinking fund or otherwise) of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation any Junior Securities or shares acquired by pari passu with the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysStock.

Dividends. (a) The holders Holders of outstanding shares of the outstanding Class A-1 Series A Preferred Stock shall be entitled to receivereceive to the fullest extent permitted by Law, out of funds legally available thereforewith respect to each Dividend Period, paid-in-kind preferential cumulative dividends at by the annual rate issuance of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in additional shares of the Company’s Class A-1 Series A Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 Notwithstanding anything to the contrary herein, from and after the date of issuance of each share of the Series A Preferred Stock, paid-in-kind preferential cumulative dividends shall accrue accumulate on a daily basis in arrears during each Dividend Period at the Dividend Rate in effect from time to time on the then-current Liquidation Preference of each such share, whether or not such dividends are earned or are declared by the Board of Directors or the Company is permitted by Law to pay dividends (“Dividends”), and, if declared, shall be due and payable in the form of additional shares of Series A Preferred Stock on the Dividend Payment Date with respect to such Dividend Period in accordance with this Section 5. On each Dividend Payment Date, each Holder of outstanding shares of the Series A Preferred Stock shall receive a number of additional shares of the Series A Preferred Stock with an aggregate Liquidation Preference equal to the aggregate amount of Dividends accumulated on the shares of such Holder for the applicable Dividend Period and the Company shall be required to declare such Dividends and pay such Dividends in kind on such Dividend Payment Date; provided that each such share commencing on of the date Series A Preferred Stock issued as a Dividend shall have a Liquidation Preference equal to the then-current Liquidation Preference of issueeach existing share of the Series A Preferred Stock. Notwithstanding anything to the contrary herein, and the Company may not declare or pay any Dividend or make any other payment to the extent such Dividend or other payment is not permitted by Law. Notwithstanding anything to the contrary herein, if any Dividends with respect to any shares of the Series A Preferred Stock with respect to any Dividend Period are not declared or are declared but not paid because such declaration or payment would not be permitted by Law, or if such Dividends are not declared (or are declared but not paid) for any other reason, then, such Dividends shall accrue from day to day, (whether or not earned or declared) compound on the applicable Dividend Payment Date with respect to such Dividend Period and shall automatically be added (and be deemed to be added) to the Liquidation Preference of each such share of the Series A Preferred Stock as of such Dividend Payment Date (“Compounded Dividends”). Such dividends In any event, the Company shall take all actions necessary to ensure that any Compounded Dividends are accurately reflected and recorded on the books and records of each of the Transfer Agent and DTC and otherwise accrue to the benefit of each Beneficial Owner of shares of the Series A Preferred Stock, including (i) directing the Transfer Agent to record the applicable increase in the Liquidation Preference of each share of Series A Preferred Stock on its books and records and (ii) ensuring that the CUSIP numbers and each other security identifier associated with each share of Series A Preferred Stock reflect any Compounded Dividends, which action shall include, to the extent necessary, procuring additional or replacement CUSIP numbers or other security identifiers. Solely on any Dividend Payment Date when the Liquidation Preference of any then-outstanding shares of the Series A Preferred Stock includes any Compounded Dividends, the Company shall, immediately prior to issuing the shares issuable in respect of the accumulated and unpaid Dividends as of such Dividend Payment Date, issue to each Holder with respect to each share of the Series A Preferred Stock of such Holder additional shares of the Series A Preferred Stock with an aggregate Liquidation Preference in an amount equal to the aggregate amount of Compounded Dividends on all such shares of the Series A Preferred Stock (if such issuance is permitted by Law and would not cause an Extraordinary Dividend as described in Section 5(b)); provided that each such share of the Series A Preferred Stock issued for the purpose of reducing Compounded Dividends shall have a Liquidation Preference equal to the Liquidation Preference that each share of the Series A Preferred Stock would have immediately after giving effect to such issuance of shares of the Series A Preferred Stock reducing Compounded Dividends on each share of the Series A Preferred Stock to zero; provided, further that the Company shall issue such shares in respect of the Compounded Dividends only on any Dividend Payment Date and only if such issuance of shares shall reduce the amount of aggregate Compounded Dividends on all shares of the Series A Preferred Stock to zero. The issuance of shares to reduce Compounded Dividends described in the immediately preceding sentence is referred to in this Certificate of Designations as a “Compounded Dividends Reduction.” Upon a Compounded Dividends Reduction, the then-current Liquidation Preference of all applicable shares shall be cumulative so reduced by the amount of the corresponding Compounded Dividends with respect to which additional shares of the Series A Preferred Stock have been issued pursuant to such Compounded Dividends Reduction. For the avoidance of doubt, the aggregate amount of accumulated Dividends required to be paid on a Dividend Payment Date on which a Compounded Dividends Reduction occurs shall not be affected by such Compounded Dividends Reduction; provided that each share of Series A Preferred Stock issued on such Dividend Payment Date in respect of such accumulated Dividends shall have a Liquidation Preference equal to the Liquidation Preference of each share of the Series A Preferred Stock immediately following such Compounded Dividends Reduction. Dividends shall be calculated on the basis of actual days elapsed over a year of 360 days. The Company shall not issue any fractional shares of the Series A Preferred Stock as part of the Dividends, but shall instead issue a number of shares of the Series A Preferred Stock that is rounded up to the nearest whole number of shares from the number of shares that would otherwise be issuable. All accumulated Dividends shall be prior and in preference to any dividend on any Junior Stock and shall be fully declared and paid before any dividends are declared and paid, or any other distributions or redemptions are made, on any Junior Stock (provided that nothing in this sentence shall restrict (x) the declaration, making or payment of any dividend or other distribution that is made, and expressly permitted to be made, by the proviso to Section 9(a)(i) or (y) the purchase, repurchase, redemption, retirement or acquisition of any shares of Equity Interest that rank junior to the Series A Preferred Stock or any payment on account thereof, in each case to the extent made, and expressly permitted to be made, by the proviso to Section 9(a)(ii)). Except as set forth in Section 7(b), Dividends shall be payable to the Holders as they appear on the stock record of the Company on the record date for such Dividends, which shall be the date that is 15 days prior to the applicable Dividend Payment Date, and which record date and Dividend Payment Date shall be declared by the Board of Directors during each Dividend Period on the date that is at least 20 days prior to the Dividend Payment Date and five days prior to the record date. If, as and when any such additional shares are issued hereunder, the Company shall take all action necessary to ensure such shares shall be duly authorized, validly issued and outstanding, fully paid and nonassessable, free and clear of all taxes, liens, charges and encumbrances with respect to the issuance thereof. (b) Subject to Section 5(c), the Company shall not declare or pay any Dividend (which, for the avoidance of doubt, shall not include any deemed dividend under Section 305 of the Code) if such dividends Dividend would, or would cause any Dividend made (or deemed made) during the two-year period beginning on the Closing Date to, in the reasonable good faith determination of the Company, constitute an “extraordinary dividend” to any Investor under Section 1059 of the Code (an “Extraordinary Dividend”); provided that any such undeclared or unpaid Dividends shall compound and be added to the then-current Liquidation Preference of each share of the Series A Preferred Stock on the applicable Dividend Payment Date as Compounded Dividends. (c) Notwithstanding anything to the contrary contained in this Certificate of Designations or in any other Series A Preferred Stock Document, Section 5(b) shall not prohibit or restrict (and shall not be construed to prohibit or restrict) (x) any Optional Redemption or any payment made or declared in respect of any previous quarterly dividend period shall not have been paid on, the 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 bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the CorporationSeries A Preferred Stock in connection with any Optional Redemption (including any payment or declaration of accumulated and unpaid Dividends in connection with any Optional Redemption) or the purchase (y) any Material Event Offer or redemption Material Event Redemption or any payment made or declared in respect of any shares of the Corporation for cash Series A Preferred Stock in connection with any Material Event Offer or property Material Event Redemption (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase payment or redemption by a subsidiary declaration of the Corporation. The time of accumulated and unpaid Dividends in connection with any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysMaterial Event Redemption).

Dividends. (a) The holders of the outstanding Class A-1 shares of Series 3 Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors, out of funds legally available thereforefor the payment of dividends, cumulative dividends in cash at the annual rate of 6% per annum of the per share purchase price Liquidation Preference ($1.10) as hereinafter defined). Such dividends shall be payable commencing on June 30, 1997 and, thereafter, in equal semi-annual payments on each December 31 and June 30 (each of such dates being a "Dividend Payment Date"), in preference to dividends on any Common Stock or stock of any other class, ranking, as to dividend rights, junior to the Class A-1 Series 3 Preferred Stock. Such dividends shall be payable in shares paid to the holders of record at the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day close of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing business on the date specified by the Board of issuanceDirectors of the Corporation at the time such dividend is declared; provided, and however, that such date shall not be pro-rated for the first such quarterly period if the same is more than 60 days nor less than 91 (ninety-one) days. All shares of common stock shall be valued at 10 days prior to the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the respective Dividend Payment Date. Such Each of such semi-annual dividends shall be fully cumulative and shall accrue on each (whether or not declared and whether or not there shall be funds legally available for the payment of dividends) from the first day of the semi-annual period in which such share commencing on dividend may be payable as herein provided to the last day of such semi-annual period, except that the dividend for the period ending June 30, 1997 shall accrue from the date of issuethe issuance of the Series 3 Preferred Stock.. (b) For any semi-annual dividend period in which dividends are not paid at the rate stated above, and shall accrue from day to dayon the Dividend Payment Date first succeeding the end of such semi-annual dividend period, whether or not earned or declared. Such such accrued dividends shall be cumulative so that if added to the Liquidation Preference of the Series 3 Preferred Stock (solely for the purposes of calculating dividends payable on the Series 3 Preferred Stock pursuant to the first sentence of paragraph 2(a)) effective at the beginning of the semi-annual dividend period succeeding the semi-annual dividend period as to which such dividends were not paid and shall thereafter accrue additional dividends in respect of any previous quarterly dividend period shall not thereof at the rate stated above, until such unpaid dividends have been paid onin full, the deficiency shall be fully paid on or declared and set apart for at which time such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date subtracted (solely for the determination purpose of holders of Class A-1 calculating dividends payable on the Series 3 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60Stock) daysfrom the Liquidation Preference.

Dividends. (a) The holders of the outstanding Class A-1 Series C Preferred Stock (collectively, the "Holders") shall not be entitled to receive dividends unless, within six (6) months following the date of issuance of the Series C Preferred Stock to the Holders (the "Amendment Date"), the Company has not amended its certificate of incorporation in order to authorize a sufficient number of shares of Common Stock into which all of the issued and outstanding shares of Series C Preferred Stock may be converted. In the event the Company does not make such an amendment by the Amendment Date, the Holders shall be entitled to receive, out of funds legally available therefore, receive cumulative dividends per share at the annual rate of 6% eight percent (8%) per annum of the per share purchase price Per Share Liquidation Preference ($1.10) as defined below), which shall accrue daily from the date of issuance of the Class A-1 Series C Preferred Stock, and which shall be compounded quarterly. Such dividends shall be payable by the Company (i) prior to payment of any dividend with respect to Junior Securities and shall be equal, if not greater, in shares amount to any such dividend on a per share basis; and (ii) on parity with any dividend with respect to the Parity Securities and at an amount equal to the dividend on a per share basis received by the holders of the Company’s Class A-1 Preferred Stock quarterlyParity Securities. (b) Any and all dividends shall be payable out of any cash legally available therefor, on and if there is not a sufficient amount of cash available, then out of the fifteenth day remaining assets of October, January, April and July the Company legally available therefor (each of such dates being a “Dividend Payment Date”) commencing valued at the fair market value thereof on the date of issuancepayment, 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 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 bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired determined by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date of the Company); provided, however, that to the extent funds or assets are not legally available for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereonany dividend, which record date then the Company shall be no more than sixty (60) dayspay such unpaid dividends promptly as funds or assets become legally available therefor.

Dividends. (a) The 2.1 Subject to the rights of the holders of any shares of Senior Stock, the outstanding Class A-1 holders of shares of Series A Preferred Stock Stock, in preference to the holders of any shares of Junior Stock, shall be entitled to receive, when, as and if declared by the Board of Directors out of funds of the Company legally available thereforetherefor, 2.2 Holders of shares of Series A Preferred Stock shall not be entitled to any dividends in excess of full cumulative dividends, cumulative dividends at as herein provided, on the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Series A Preferred Stock. Such dividends 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 which may be in arrears (it being understood that the compounding of unpaid dividends shall not constitute interest or money in lieu of interest). 2.3 Whenever quarterly dividends payable on shares of the Company’s Class A-1 Series A Preferred Stock quarterlyare in arrears, on the fifteenth day of October, January, April thereafter and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuance, until all accrued 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 dayunpaid dividends, whether or not earned or declared. Such dividends , on the outstanding shares of Series A Preferred Stock shall be cumulative so that if such dividends in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on in full or declared and set apart for such payment, the Company shall not: (i) declare or pay dividends, or make any other distributions, on any shares before of Junior Stock other than dividends or distributions payable in Junior Stock ; or (ii) declare or pay dividends, or make any other distributions, on any shares of Parity Stock, except (1) dividends or distributions payable in Junior Stock and (2) dividends or distributions paid ratably on the Corporation makes any distribution (as hereinafter defined) Series A Preferred Stock and all Parity Stock on which dividends are payable or in arrears, in proportion to the total amounts to which the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in all shares of the Corporation) or the purchase or redemption of Series A Preferred Stock and such Parity Stock are then entitled. 2.4 Whenever quarterly dividends payable on shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive planSeries A Preferred Stock are in arrears, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof thereafter and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporationuntil all Accumulated Dividends, whether or not pursuant to a contract declared, on the outstanding shares of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Series A Preferred Stock entitled to receive payment shall have been paid in full or declared and set apart for payment, the Company shall not: (i) redeem or purchase or otherwise acquire for consideration any shares of a dividend declared thereon, which record date shall be no more than sixty Junior Stock or Parity Stock; or (60ii) days.purchase or

Dividends. (a) The holders of the outstanding Class A-1 Preferred Stock Shares shall be entitled to receive, out of funds legally available therefore, cumulative bear dividends at the annual a rate of 6% five and one-quarter percent (5.25%) per annum of annum, which shall accrue daily and compound on a quarterly basis from the per share purchase price Issuance Date ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterlyas defined below), on the fifteenth day of October, January, April and July Stated Value (each of such dates being a as defined below) (the “Dividend Payment DateAccruing Dividend”) 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 Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 they have been declared and whether or declarednot there are profits, surplus or other funds of the Company legally available for the payment of dividends. Such dividends shall not be cumulative so paid or payable in cash, except, at the Company’s option, and subject to applicable law, such dividends may be payable quarterly in cash beginning on the five (5) year anniversary of the Issuance Date, with the period between the Issuance Date and such five (5) year anniversary being defined as the “Guaranteed Term”. The Accruing Dividend shall cease to accrue upon the end of the Guaranteed Term. (b) To the extent that, during the Guaranteed Term, (i) the Company undergoes any liquidation, dissolution, winding up, or Fundamental Transaction, or (ii) the Company elects to effect a Mandatory Conversion of the Preferred Shares, (each, a “Make Whole Event”), then, immediately prior to the effective time of such Make Whole Event and without further action by any party, the amount of Accruing Dividend accrued on the Preferred Shares shall automatically be increased by an amount equal to any additional Accruing Dividend that would have otherwise accrued on the Preferred Shares between the date of the Make Whole Event and the end of the Guaranteed Term (the “Make Whole Payment”), and the Accruing Dividend shall thereafter cease to accrue. (c) In addition, subject to the rights of the holders, if any, of the shares of other classes or series of Preferred Stock of the Company that are of equal rank with the Preferred Shares as to payments of Preferred Funds (as defined below) (the “Pari Passu Shares”), if the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of the Company’s common stock, par value $0.01 per share (“Common Stock”), by way of return of capital or otherwise (including any dividend or other distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement or other similar transaction) (a “Distribution”), at any time after the Issuance Date, then, in each such case, each holder of Preferred Shares shall be entitled to receive such Distribution, and the Company shall make such Distribution to such holder, exactly as if such dividends holder had converted such holder’s Preferred Shares in respect full (and, as a result, had held all of the Conversion Shares (as defined below) that such holder would have received upon such conversion, without regard to any previous quarterly dividend period shall not have been paid onlimitations or restrictions on conversion) immediately prior to the record date for such Distribution, or if there is no record date therefor, immediately prior to the deficiency effective date of such Distribution (but without the holder’s actually having to so convert such holder’s Preferred Shares). For the avoidance of doubt, payments under the preceding sentence shall be fully paid on or declared and set apart for such shares before made concurrently with the Corporation makes any distribution (as hereinafter defined) Distribution to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) days.

Dividends. (i) Dividends on the Company Preferred Securities will be payable from the date of initial issuance on 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 if any such day is not a Business Day, the next Business Day, but without any additional interest or other payment in respect of such delay) (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 - 2011, 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 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 in 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) The 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 outstanding Class A-1 Preferred Stock shall be entitled to receive, out of funds legally available therefore, cumulative dividends at the annual rate of 6% per annum securities business of the per share Bank or any of its subsidiaries, (c) the purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable fractional interests in shares of Bank Parity Securities or Bank Junior Obligations pursuant to the Company’s Class A-1 Preferred Stock quarterlyconversion 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 fifteenth day of OctoberCompany Preferred Securities are required to be paid as described in paragraph (A), January, April and July (each of such dates being 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) commencing 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 in compliance, or because of issuancea 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, 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 "Distributable Profits Limitation Certificate") 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 shall be pro-rated for (B) the first such quarterly period if aggregate amount of dividends on the same is less than 91 Company Preferred Securities that the Company may pay on any subsequent Dividend Payment Date in the current year (ninety-one) days. All shares or in January of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean following year in the case of stock Dividend Payment Dates occurring after - 2011) may not exceed the lesser of full dividends and the remaining amount of such Available Distributable Profits (after giving effect to the payment of dividends pursuant to this subclause or subclause (A), above). (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 payable on a given dateDividend Payment Date if, on or before the average of the closing bid prices for the Company’s common stock for the ten trading days tenth Business Day immediately preceding the such Dividend Payment Date. Such , the Bank delivers a No Dividend Instruction to the Company instructing it not to pay dividends shall accrue on each such share commencing Dividend Payment Date; and 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 the amount of dividends, if any, that will be paid 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 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 bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysrelated Dividend Payment Date.

Dividends. (a) The 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 outstanding Class A-1 Series C Preferred Stock, the holders of shares of Series C Preferred Stock shall be entitled to receive, when, as and if declared by the Board, out of assets of the Company legally available for the payment of dividends, quarterly cumulative cash dividends in an amount per share of Series C Preferred Stock equal to the greater of (i) $21.25 and (ii) the amount of the regular quarterly cash dividends for such Dividend Period upon the number of shares of Common Stock (or portion thereof) into which such Series C Preferred Stock is then convertible in accordance with Section VII hereof (but, 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 with respect thereto, and, if not paid on such date, shall accumulate, whether or not there are funds legally available therefore, cumulative for the payment thereof and whether or not such dividends at are declared or authorized. The record date for dividends to the annual rate holders of 6% per annum shares of the per share purchase price ($1.10) of the Class A-1 Series C Preferred Stock. Such dividends Stock for any Dividend Period shall be payable in the same as the record date for the dividends to the holders of shares of Common Stock for such Dividend Period (or, if no such record is set for the Company’s Class A-1 Preferred Stock quarterlyCommon Stock, on the fifteenth day of Octoberthe 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, January, April and July (each of such dates being a “without reference to any Dividend Payment Date”) commencing , to holders of record on such date, not exceeding 45 days preceding the payment date thereof, as may be fixed by the Board. Any dividend payment made on the date shares of issuanceSeries C Preferred Stock shall first be credited against the earliest accumulated but unpaid dividend due with respect to such shares which remains payable. No interest, and or sum of money in lieu of interest, shall be proowing or payable in respect of any 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 provisions of any 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 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 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 ranking junior to the Series C Preferred Stock as to payment of dividends and amounts upon liquidation, dissolution or winding-rated 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 any monies be paid to or made available for a sinking fund for the first redemption of any such quarterly period if Capital Stock) by the same is less than 91 Company (ninetyexcept 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-oneup of the Company or by redemptions for the purpose of maintaining the Company's qualification as a real estate investment trust ("REIT") days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean for U.S. federal income tax purposes) unless, in the case of stock on a given dateeither clause (i) or (ii), 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 full cumulative 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 or contemporaneously are declared and paid on, the deficiency shall be fully paid on or declared and a sum sufficient for the payment thereof set apart for such shares before payment on the Corporation makes any distribution (as hereinafter defined) Series C Preferred Stock for all Dividend Periods ending on or prior to the holders dividend payment date for the Common Stock or such other class or series of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) Capital Stock or the purchase or redemption date of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transferredemption, purchase or redemption by other acquisition. (d) When dividends are not paid in full (or a subsidiary 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 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 Capital Stock does not have a cumulative dividend) bear to each other. (e) The holders of the Corporation. The time shares of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Series C Preferred Stock shall not be entitled to receive payment any dividends in excess of a dividend declared thereon, which record date shall be no more than sixty (60full cumulative dividends as described in V(a) daysabove.

Dividends. (a) The holders 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 the outstanding Class A-1 Preferred TBRE Award and the CPRE Award shall be the Effective Date and such Restricted Stock shall be entitled to receive, out of funds legally available therefore, cumulative dividends at dividend equivalent amounts equal to the annual rate of 6% per annum full distribution payable on Common Stock outstanding as of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such record dates being a “Dividend Payment Date”) commencing on the date of issuance, and shall be pro-rated for the first such and second 2007 quarterly period if distributions even though they were not outstanding for the same is less than 91 whole period. (ninety-onec) days. All The dividend date with respect to Restricted Stock issued as part of the Earned SPRE Award shall be the issuance date, provided, however, that the Earned SPRE Award shall be entitled to the full dividend payable on Common Stock outstanding as of the 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 Effective Date through the date the shares of common stock Restricted Stock underlying the SPRE Award are actually issued to the Grantee or forfeited pursuant to Section 4(c)(vi), as the case may be, the Company shall provide a quarterly dividend equivalent payment in cash to the Grantee in an amount equal to 20% of the dividend payable per share of Common Stock multiplied by the number of shares of Restricted Stock underlying the SPRE Award. (e) All dividends and dividend equivalent payments paid with respect to Restricted Stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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, fully vested and shall accrue from day to daynon-forfeitable when paid, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends in respect the underlying shares of any previous quarterly dividend period shall not Restricted Stock have been paid on, earned based on performance or have become vested based on the 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 passage of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daystime.

Dividends. (a) The So long as any shares of Series B Preferred Stock shall be outstanding, the holders of the outstanding Class A-1 such Series B Preferred Stock shall be entitled to receive, out if legally payable by the Board of funds legally available thereforethe Company, cumulative dividends preferential dividends, payable-in-kind in additional shares of Series B Preferred Stock of the same series, based upon the Liquidation Preference thereof, at the annual rate Dividend Rate on the Liquidation Preference hereunder, payable semi-annually on the first Business Day of 6% per annum July and January of each year, commencing July 1, 1998. If the Board of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such Company cannot legally declare or pay such dividends, then such dividends shall be payable in shares cumulative and compound semi-annually, shall begin to accrue and compound from the Original Issue Date, whether or not there shall be net profits or net assets of the Company’s Class A-1 Preferred Stock quarterly, on Company legally available for the fifteenth day payment of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuancethose dividends, and shall be propaid-rated in-kind as soon as such dividends are legally payable. Any such dividend payable for the first period from the Original Issue Date to the date hereof shall be payable based on the Liquidation Preference previously set forth in the Series B Preferred Original Certificate of Designation, and any such quarterly dividend payable for the period if after the same is less than 91 date hereof shall be payable based on the Liquidation Preference set forth herein. Dividends may not be paid in cash. (ninety-oneb) days. All So long as any shares of common stock Series B Preferred Stock shall be valued at outstanding, then, without the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average affirmative vote of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends Required Holders, (i) no dividend whatsoever shall accrue on each such share commencing on the date of issuebe paid or declared, and shall accrue from day to day, whether or not earned or declared. Such dividends no distribution shall be cumulative so that if such dividends in respect made, on account of any previous quarterly dividend period shall not have been paid on, the deficiency Common Stock or Series A Preferred Stock and (ii) no shares of Common Stock or Series A Preferred Stock shall be fully paid on repurchased, redeemed 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 bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive planCompany, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend and no funds shall be the date of declaration thereof and the time of any distribution by purchase paid into or redemption of shares shall be the day cash set aside or property is transferred by the Corporation, whether or not pursuant to made available for a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date sinking fund for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereonpurchase, which record date shall be no more than sixty (60) daysredemption or acquisition thereof.

Dividends. (a) The holders of the outstanding Class A-1 A Preferred Stock shares, in priority to the holders of Common shares and any other class or series of shares ranking junior to the Class A Preferred shares, shall be entitled to receive, receive and the Company shall pay thereon out of funds legally available thereforemonies of the Company properly applicable to the payment of dividends, cumulative cash dividends, or dividends payable as a PIK Dividend in the circumstances set forth below, at the annual rate of 6% per annum of the per share purchase price eight percent ($1.108%) of the Class A-1 A Preferred Stock. Such dividends shall be Share Original Issue Price per share, per annum, accruing (but not compounding) daily, payable in shares only upon the liquidation, dissolution or winding-up of the Company or, at any time prior to the liquidation, dissolution or winding-up of the Company’s Class A-1 Preferred Stock quarterly, on payable if, as and when declared by the fifteenth day Board of October, January, April and July (Directors. The Board of Directors shall deliver notice to each of the holders of the Class A Preferred shares at least fourteen (14) days prior to any declaration by the Board of Directors of the dividends provided to be paid under this Section 27.3(4) if such dates being dividends are to be declared by the Board of Directors prior to the liquidation, dissolution or winding-up of the Company. Each holder of Class A Preferred shares may, in its sole discretion, receive all or any portion of the amount of the cumulative dividends payable hereunder in the form of a “Dividend Payment Date”) commencing on the date whole number of issuancefurther Class A Preferred shares ("PIK Dividends"), and shall to 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 issued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days such Class A Preferred shares immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on prior to the date on which the dividend is declared; provided that such holder has delivered an election to receive all or a portion 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 PIK Dividends, specifying the amount of any previous quarterly such dividends to be payable in PIK Dividends if less than all of such dividends are to be payable in PIK Dividends, at least seven (7) days prior to the date provided for declaration of the dividend period shall not have been paid on, Any amount of dividends payable to a holder of Class A Preferred shares that has elected to receive PIK Dividends that is less than a whole multiple of the deficiency shall be fully paid on or declared and set apart then applicable issuance price for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of Class A Preferred shares shall be paid in cash. In the day cash or property is transferred by the Corporation, whether or not event PIK Dividends are payable pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time liquidation, dissolution or winding-up of the distribution is the date when the Corporation acquires Company or a Deemed Liquidation Event, the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date issuable as PIK Dividends shall be no more than sixty (60) daysdeemed to have been issued immediately prior to such liquidation, dissolution, winding-up or Deemed Liquidation Event.

Dividends. (a) The 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 outstanding Class A-1 Series C Preferred Stock, the holders of shares of Series C Preferred Stock shall be entitled to receive, when, as and if declared by the Board, out of assets of the Company legally available for the payment of dividends, quarterly cumulative cash dividends in an amount per share of Series C Preferred Stock equal to the greater of (i) $21.25 and (ii) the amount of the regular quarterly cash dividends for such Dividend Period upon the number of shares of Common Stock (or portion thereof) into which such Series C Preferred Stock is then convertible in accordance with Section VII hereof (but, 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 with respect thereto, and, if not paid on such date, shall accumulate, whether or not there are funds legally available therefore, cumulative for the payment thereof and whether or not such dividends at are declared or authorized. The record date for dividends to the annual rate holders of 6% per annum shares of the per share purchase price ($1.10) of the Class A-1 Series C Preferred Stock. Such dividends Stock for any Dividend Period shall be payable in the same as the record date for the dividends to the holders of shares of Common Stock for such Dividend Period (or, if no such record is set for the Company’s Class A-1 Preferred Stock quarterlyCommon Stock, on the fifteenth day of Octoberthe 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, January, April and July (each of such dates being a “without reference to any Dividend Payment Date”) commencing , to holders of record on such date, not exceeding 45 days preceding the payment date thereof, as may be fixed by the Board. Any dividend payment made on the date shares of issuanceSeries C Preferred Stock shall first be credited against the earliest accumulated but unpaid dividend due with respect to such shares which remains payable. No interest, and or sum of money in lieu of interest, shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares owing or payable in respect of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on 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 any dividend payment or payments on the date of issue, and shall accrue from day to daySeries C Preferred Stock, 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 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 bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysarrears.

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) The 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 outstanding Class A-1 Preferred Stock shall be entitled to receive, out of funds legally available therefore, cumulative dividends at the annual rate of 6% per annum securities business of the per share Bank or any of its subsidiaries, (c) the purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable fractional interests in shares of Bank Parity Securities or Bank Junior Obligations pursuant to the Company’s Class A-1 Preferred Stock quarterlyconversion 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 fifteenth day of OctoberCompany Preferred Securities are required to be paid as described in paragraphs (A), January, April and July (each of such dates being 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) commencing 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 in compliance, or because of issuancea 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, 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 "Distributable Profits Limitation Certificate") 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 shall be pro-rated for (B) the first such quarterly period if aggregate amount of dividends on the same is less than 91 Company Preferred Securities that the Company may pay on any subsequent Dividend Payment Date in the current year (ninety-one) days. All shares or in January of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean following year in the case of stock 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 payable on a given dateDividend Payment Date if, on or before the average of the closing bid prices for the Company’s common stock for the ten trading days tenth Business Day immediately preceding the such Dividend Payment Date. Such , the Bank delivers a No Dividend Instruction to the Company instructing it not to pay dividends shall accrue on each such share commencing 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 dividends on such Dividend Payment Date, dividends on the date Company Preferred Security will be 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 issuethe Company Preferred Securities in the manner described in Section 7.3(i) of the fact that it has received a No Dividend Instruction and the amount of dividends, and shall accrue from day to dayif any, whether or not earned or declared. Such dividends shall that will be cumulative so that if such dividends in respect of any previous quarterly dividend period shall not have been paid on, the 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 bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be 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 exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysrelated Dividend Payment Date.