Common use of Dividends Clause in Contracts

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

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

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

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

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

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

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

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

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

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

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

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

Dividends. (a) Holders of shares of Series A Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that If on any Dividend Payment Datedate while PSUs are outstanding hereunder, the Company is not permitted to declare or shall pay such any dividend or incur such liability either on the Shares (xother than a dividend payable in Shares), the number of PSUs (if any) 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 held by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability Participant 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 increased by a number equal to: (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 (iia) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (Bx) the number of shares outstanding PSUs held by the Participant as of Common Stock into the related dividend record date, multiplied by (y) a dollar amount equal to the per Share amount of any cash dividend (or, in the case of any dividend payable in whole or in part other than in cash or Shares, the per Share value of such dividend, as determined in good faith by the Committee), divided by (b) the Fair Market Value of a Share on the payment date of such dividend. (b) In the case of any dividend declared on Shares that is payable in the form of 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 Share. 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 share of Series A Preferred Stock is then convertible. additional PSUs were attributable. (c) For purposes of this Section 3(a4, the number of PSUs held by the Participant as of the applicable dividend record date shall be deemed to equal (i) zero (0), a if such dividend period record date occurs prior to the Determination Date or (ii) the Earned PSUs (if any) (with respect any additional PSUs granted pursuant to a Dividend Payment Date is 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 commencing beginning on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) of Grant and ending on the day 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 prior added to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders number of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders Earned PSUs established as of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendDetermination Date.

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

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

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

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

Dividends. (a) Holders of shares of Series A Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be when, as and if declared by the Board of Directors or a duly authorized committee thereof, out of the assets funds of the Company Corporation legally available thereforfor payment, and cumulative dividends at the Dividend Rate (“Dividends”). Dividends on the Preferred Stock shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) paid quarterly in arrears at the rate per annum Dividend Rate in cash or, at the election of 6% per share on the Liquidation Preference; provided thatCorporation, subject to receipt of any necessary Shareholder Approval (to the extent necessary), in the event that on any Dividend Payment Date, the Company is not permitted Common Stock as provided pursuant to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan 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 Section 4. For the avoidance of doubt, unless prohibited by applicable law, (i) the Board shall not fail to declare such Deferred Dividend Dividends on Preferred Stock and (ii) notwithstanding anything contained herein to the contrary, dividends on the Preferred Stock shall accrue for all fiscal periods during which the Preferred Stock is outstanding, regardless of whether the Corporation has earnings in any such period, whether there are funds legally available for the payment of such dividends and whether or not such dividends are authorized or declared. Dividends shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable arrears on such succeeding each Dividend Payment Date to the holders of record of Preferred Stock as they appear on the Corporation’s stock register at the close of business on the relevant Dividend Record Date). The amount of dividends Dividends payable for any other period that is shorter or longer less than a full semiannual quarterly dividend period will (based upon the number of days elapsed during such period) shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following . (b) No dividend shall be declared or paid upon, or any sum set apart for the Meeting End Datepayment of dividends upon, in any Outstanding share of the event that dividends are paid on shares of Common Preferred Stock in with respect to any dividend period with respect to unless all dividends for all preceding dividend periods have been declared and paid, or declared and a sufficient sum has been set apart for the Series A payment of such dividend, upon all Outstanding shares of Preferred Stock, then . (c) No dividends or other distributions (other than a dividend shall or distribution payable solely in shares of Parity Stock or Junior Stock (in the case of Parity Stock) or Junior Stock (in the case of Junior Stock) and cash in lieu of fractional shares) may be payable in respect declared, made or paid, or set apart for payment upon, any Parity Stock or Junior Stock, nor may any Parity Stock or Junior Stock be redeemed, purchased or otherwise acquired for any consideration (or any money paid to or made available for a sinking fund for the redemption of each share any Parity Stock or Junior Stock) by the Corporation or on behalf of Series A Preferred Stock for such period in an amount equal to the greater of Corporation (except by (i) conversion into or exchange for shares of Parity Stock or Junior Stock (in the amount otherwise payable case of Parity Stock) or Junior Stock (in respect the case of such share Junior Stock) and cash solely in lieu of Series A Preferred fractional shares of Parity Stock or Junior Stock (in accordance with the foregoing paragraph case of Parity Stock) or Junior Stock (in the case of Parity Stock) and (ii) payments in connection with the product satisfaction of employees’ tax withholding obligations pursuant to employee benefit plans or outstanding awards (Aand payment of any corresponding requisite amounts to the appropriate governmental authority), unless all Accumulated Dividends (as of the date of such declaration, payment, redemption, purchase or acquisition) shall have been or contemporaneously are declared and paid in cash. Further, no dividends or other distributions (other than a dividend or distribution payable solely in shares of Junior Stock and cash in lieu of fractional shares) may be declared, made or paid, or set apart for payment upon, any Junior Stock (except payments in connection with the aggregate satisfaction of employees’ tax withholding obligations pursuant to employee benefit plans or outstanding awards (and payment of any corresponding requisite amounts to the appropriate governmental authority) unless the payment of the dividend in respect of the Preferred Stock for the most recent dividend period ending on or prior to the date of such declaration or payment has been declared and paid in cash or declared and a sum of cash sufficient for the payment thereof has been set aside for such payment. Notwithstanding the foregoing, if full dividends payable 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 Common Preferred Stock in and such dividend period times Parity Stock bear to each other at the time of declaration. (Bd) the number Holders of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes shall not be entitled to any dividend, whether payable in cash, property or stock, in excess of full cumulative dividends (it being understood that this Section 3(d) shall not limit the Corporation’s obligations pursuant to Section 3(a), a dividend period with respect to a . (e) If any Dividend Payment Date falls on a day that is not a Business Day, the period commencing required payment will be on the preceding 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. (f) The holders of shares of Preferred Stock at the close of business on a Dividend Record Date shall be entitled to receive the dividend payment on those shares on the corresponding Dividend Payment Date (or, if there is no preceding notwithstanding the conversion of such shares in accordance with Sections 8 or 9 following such Dividend Record Date or the Corporation’s default in payment of the dividend due on such Dividend Payment Date. In the case of conversion of shares of Preferred Stock pursuant to Section 5 following the close of business on a Dividend Record Date but prior to the corresponding Dividend Payment Date, the Issue Dateholders of such shares shall not be entitled to receive the corresponding dividend payment following conversion (it being understood that the value thereof is included in the conversion terms set forth in Section 5). (g) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) herein to the contrary, and without limiting any other remedy available to the Company extent that any Holder’s right to participate in any Dividend would result in the Holder exceeding the Beneficial Ownership Limitation or any other partythe Permitted Percentage Limitation, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated then the rights appurtenant to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order such Dividend to effect the Stockholder Approval (or whose transferor Holder was so obligated) if which such Holder is entitled pursuant hereto shall be limited to the same extent provided in Section 11 hereof. (h) Except as provided in Section 8 the Corporation shall make no payment or such transferor Holder allowance for unpaid dividends, whether or not in arrears, on converted shares of Preferred Stock or for dividends on the Affiliates shares of either) fails so to appear and vote in favor. Any shares Common Stock issued to such Holders shall bear the Stockholder Approval Legendupon conversion.

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

Dividends. (a) Beginning on the applicable Issue Date, the Holders of the outstanding shares of Series A Convertible Preferred Stock being issued on such Issue Date shall be entitled to cumulative receive, when, as, and if declared by the Special Committee, out of funds legally available therefor, cash dividends on each share of Convertible Preferred Stock, at the Series A rate (the "Dividend Rate") of 10 3/8% per annum multiplied by the then-effective liquidation preference per share of the SECOND AMENDED AND RESTATED ARTICLES OF INCORPORATION OF KEVCO, INC.-PAGE 6 204 Convertible Preferred Stock payable semiannuallyStock. Additional dividends, at the Dividend Rate, shall accrue in respect of, and compound on, any dividends which are in arrears. All dividends shall be declared by cumulative, whether or not earned or declared, from the Board of Directors or a duly authorized committee thereof, out of Issue Date and shall compound to the assets of extent not paid on the Company legally available therefornext succeeding Dividend Payment Date, and shall be payable semiannually quarterly in arrears on each Dividend Payment Date, commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “first Dividend Payment Date after the applicable Issue Date”) at . At the rate per annum option of 6% per share on the Liquidation Preference; provided thatcorporation as determined by the Special Committee, in the event that any dividend payable 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 Date may be declared and paid wholly or partially "in kind" in lieu of cash, by the Board issuing whole shares of Directors, shall not be paid or payable Series B Nonvoting Preferred Stock 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 an aggregate liquidation preference in an amount equal to the greater aggregate cash dividend cumulated and unpaid to such date (or any portion thereof) with cash paid in lieu of (i) the issuing fractional shares. 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 any dividends payable per share of Common Stock on any Dividend Payment Date not declared or paid in such dividend period times (B) full in cash or by the number issuance of shares of Common Stock into which such share of Series A B Nonvoting Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior shall be added to the next Dividend Payment Dateliquidation preference of the Convertible Preferred Stock on such date. Dividends payable on a Dividend Payment Date Each dividend shall be payable to Holders of record as they appear on the close stock books of business the corporation on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date immediately preceding the related Dividend Payment Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.

Dividends. (a) Holders The record owner of shares of Series A Preferred Stock each Voting Trust Certificate shall be entitled to cumulative receive his pro rata share of any dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared paid or distributed by the Board Company upon the Shares represented by the Voting Trust Certificates and all other corporate distributions made by the Company in respect of Directors such Voting Shares; provided, however, that, if any such dividend or a duly authorized committee thereof, out distribution includes shares of the assets capital stock of the Company legally available thereforwith voting rights, the certificates representing such shares of stock shall be deposited with the Voting Trustee subject to the terms of this 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 date so fixed shall exclusively be entitled to participate in the payment or distribution. Upon receipt by the Voting Trustee of any dividend or other distribution in respect of any Shares held by the Voting Trustee, the Voting 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 Company if the foregoing provisions hereof had been observed. Notwithstanding the foregoing provisions of this Section 5, if the Company shall reclassify its Shares, reorganize, sell all or substantially all of its assets with or without dissolution, consolidate with or merge into another corporation, or if another corporation shall merge into the Company, the shares of capital stock into which the Shares then on deposit hereunder shall be reclassified and any shares of capital stock issued in exchange or substitution for the Shares then on deposit hereunder shall, if they are non-voting shares, be distributed in accordance with the provisions of this Agreement directly to the record owners of outstanding Voting Trust Certificates, issued in respect of such Shares; or, if they are voting shares, they shall become subject to the terms and conditions of this Agreement as if such voting shares had been originally deposited hereunder, and shall be payable semiannually commencing on deposited with the 180th day following Voting Trustee, and the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum owner 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 outstanding Voting Trust Certificates shall be incurred in respect thereof, and instead, entitled to receive new Voting Trust Certificates representing 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 newly deposited shares of Common Stock in any dividend period capital stock with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendvoting rights.

Dividends. (a) Holders From and after the date of shares of Series A Preferred Stock shall be entitled this Agreement and prior to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment DateClosing, the Company is shall not permitted to declare or pay such make any dividend or incur such liability either (x) as a matter distribution to its shareholders, and Company OP shall not make any distribution to its partners, in each case without the prior written consent of law or (y) under Parent in its sole discretion; provided, however, that the terms prior written consent of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) Parent shall not be declared required for the authorization and payment of (i) regular quarterly distributions not to exceed $0.24 per Company Common Share per quarter to the holders thereof for the quarter ending September 30, 2006 and for each quarter thereafter ending prior to the Effective Times (with regular declaration and payment dates); (ii) a special dividend required 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 Code for the Company is not prohibited from declaringto maintain its qualification as a REIT or necessary to eliminate any federal Tax liability, paying and incurring the liability in respect of such Deferred Dividend after giving effect to any payments made or to be made pursuant to clause (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 Datei). The amount of dividends payable for any other period that is shorter or longer than ; (iii) 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, distribution per Company OP Unit in the event that same amount as a dividend per Company Common Share permitted pursuant to clauses (i) and (ii) above, with the same record and payment dates as such dividends are paid on shares Company Common Shares, (iv) a quarterly distribution of Common Stock $0.46875 per Company Preferred Share on record and payment dates set forth in any dividend period the Declaration prior to the Effective Times (with regular declaration and payment dates); (v) distributions from Company OP to the Company sufficient to permit the Company to make the distributions with respect to the Series A Company Preferred Stock, then Shares described in clause (iv) above. (b) Each of Parent and the Company shall declare a dividend to their respective shareholders, the record date for which shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the last Business Day prior to the Merger Effective Time. The per share dividend amount payable by each party shall be an amount equal to such party’s most recent quarterly dividend rate, multiplied by the number of days elapsed since the last dividend record date through and including the day prior to the day on which the Board 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 contraryMerger Effective Time occurs, and without limiting any other remedy available divided by the actual number of days in the calendar quarter in which such dividend is declared. (c) In the event that a distribution with respect to the Company or any other party, dividends shall Common Shares and the Company Preferred Shares permitted by this Section 6.9 (including pursuant to Section 6.9(b) above) has (i) a record date prior to the Effective Times and (ii) has not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders been paid as of the Effective Times, the holders of Company in order Common Shares and Company Preferred Shares shall be entitled to effect receive such distribution from the Stockholder Approval (or whose transferor Holder was so obligated) if Company at the time such Holder (or such transferor Holder or the Affiliates shares are exchanged pursuant to Article II of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendthis Agreement.

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

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

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

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

Dividends. (a) Holders The holder of shares of Series A Preferred Stock each voting trust certificate shall be entitled to cumulative dividends on receive payments equal to the Series A Preferred Stock payable semiannuallycash dividends, which dividends shall be declared if any, received by the Board Trustee prior to the termination of Directors this Agreement upon the shares of Company Stock beneficially represented by each such voting trust certificate, such payment to be made by the Trustee to the person or a duly authorized committee thereof, out persons entitled thereto within three business days after receipt of such cash dividend by the assets Trustee unless and except to the extent that the Trustee has given the Company the instructions contemplated by Section 7(d) hereof. If any dividend in respect of the Company legally available therefor, and shall be payable semiannually commencing on Stock deposited with the 180th day following the Issue Date (or the following Business Day if any such payment date Trustee is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided thatpaid, in whole or in part, in capital stock of the event that on any Dividend Payment DateCompany having general voting powers, in a transaction nontaxable to the recipient, the Company is not permitted Trustee shall likewise hold, subject to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreementthis Agreement, credit agreement, guaranty, or related agreement, the capital stock so received by the Trustee on account of such dividend (a “Deferred Dividend”) which shall not thereupon also be declared deemed to be "Company Stock"), 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 the Board of Directors, shall not be paid or payable on Trustee as 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 StockCompany 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 Trustee at the close of business on day fixed by the Company for the taking of 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 a dividend shall be payable in respect of each share of Series A Preferred Stock for registered as such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on at the close of business on the day date so fixed by the Trustee, but in all events subject to applicable law. (c) The transfer books of the Trustee may be closed temporarily by the Trustee for a period not exceeding 20 days preceding the date fixed for the payment or distribution of dividends or the distribution of assets or rights, or any other time in the discretion of the Trustee. In lieu of 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 voting trust certificates entitled to receive such payment or distribution, and the holders of voting trust certificates of record at the close of business on which such date shall exclusively be entitled to participate in such payments or distribution, but in all events subject to applicable law. (d) In lieu of receiving cash dividends upon Company Stock and paying 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) same to the contraryholders 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 without limiting until revoked by the Trustee, all liability of the Trustee with respect to such dividends shall cease. The Trustee may at any other remedy available time revoke such instructions and by written notice to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated direct it to appear and vote in favor of any proposal made at a meeting of stockholders of make dividend payments to the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendTrustee.

Dividends. (a) Holders To the extent necessary to satisfy the requirements of Section 857(a)(1) of the 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 Series A Preferred Stock ICH Stock, the record and payment dates for which shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on 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. 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 Board time of Directors such surrender the amount of dividends or other distributions with a duly authorized committee thereof declares record date after the dividend 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. (each, a “Dividend Record Date”). c) Notwithstanding anything in any provision of this Section 3(a) Article II to the contrary, dividends shall be paid by ICH pro rata with respect to each outstanding share of beneficial interest within a particular class of ICH Stock and without limiting any other remedy available dividends shall be paid by ACT pro rata with respect to each outstanding share of beneficial interest of ACT within a particular class in accordance with the requirements of Section 562(c) of the Code (including, as necessary, by transferring cash to an appropriate paying agent), and no dividend payments shall accrue to the Company benefit of ACT or ICH for failure of a former holder of ICH Stock to surrender any other party, dividends shall not accrue or be payable in respect certificate representing any share of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendICH Stock.

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

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

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

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

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

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

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

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

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

Dividends. Cinergy shall not, nor shall it permit any of its subsidiaries to, (ai) Holders of shares of Series A Preferred Stock shall be entitled to cumulative declare, set aside or pay any dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability make other distributions in respect of any 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 Deferred Dividend (anddividends in accordance with past dividend practice; provided, for that if the avoidance of doubt, such Deferred Dividend shall be payable in addition to, Cinergy Effective Time does not occur between a record date 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 payment date of a 360-day year consisting regular quarterly dividend, a special dividend may be declared and paid in respect of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Cinergy Common Stock in any dividend period with respect to the Series A Preferred Stockquarter 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, then a which dividend shall be payable in respect of each share of Series A Preferred Stock for such period in does not exceed an amount equal to the greater product of (i) a fraction the amount otherwise payable (x) numerator of which is equal to the number of days between the last payment date of a regular quarterly dividend and the record date of such special dividend (excluding such last payment date but including the record date of such special dividend) and (y) the denominator of which is equal to 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 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 issued under the terms of this Agreement, and (D) to the extent advisable in the exercise of the fiduciary duties of the Board of Directors of Cinergy, for the declaration and payment of a customary share purchase rights plan, provided, that, (1) Cinergy shall provide Duke prior notice of any such declaration or payment and (2) in connection with any such declaration or payment, the Board of Directors of Cinergy and Cinergy shall cause (x) this Agreement and the transactions contemplated hereby to not result in a "Distribution Date" (as such term may be defined in any such share purchase rights plan) or similar event under such share purchase rights plan and (y) any such share purchase rights plan to be inapplicable in all respects to this Agreement, the Duke Merger, the Cinergy Merger and the other transactions contemplated hereby; and (ii) split, combine, reclassify or take similar action with respect to any of its capital stock or share capital or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or comprised in its share capital, (iii) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or other reorganization, or (iv) 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 Series A Preferred funding the Cinergy Employee Stock Option Plans or employee stock ownership or dividend reinvestment and stock purchase plans, or (C) mandatory repurchases or redemptions of preferred stock of Cinergy's subsidiaries in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendterms thereof.

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

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

Dividends. (a) Holders of shares of Series A Preferred Stock 10.4.1 The Borrower shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends not and shall be declared by the Board of Directors or a duly authorized committee thereof, out procure that no other member of the assets NCLC Group shall, pay any dividends or make any other distributions in respect of its share capital to any person, provided that (i) subsidiaries of the Company legally available therefor, and shall be payable semiannually commencing on Borrower may pay dividends to another member of the 180th day following NCLC Group; (ii) the Issue Date (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 following Business Day if any such payment date is not a Business Day) (each such date being referred Borrower’s capital stock with respect to herein income taxable as a “Dividend Payment Date”result of any member of the NCLC Group being treated as a pass-through entity or attributable to any member of the NCLC Group and (iii) at after the rate per annum later 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 the listing of law the ordinary capital stock of the Borrower or parent company of the Borrower on an Approved Stock Exchange and (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 Total Delayed Principal Amount having been cancelled and/or prepaid and/or repaid, dividends may be paid in an amount not to exceed [*] of (i) the amount otherwise payable in respect Consolidated Net Income of such share of Series A Preferred Stock in accordance with the foregoing paragraph Borrower 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 its subsidiaries for the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) 1 January 2010 and ending on the day immediately date prior to such payment for which accounts are available, so long as (I) at the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable 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 and (II) after giving effect to Holders such dividend the ratio of record on Total Net Funded Debt to Consolidated EBITDA for the close of business on the day on four (4) consecutive financial quarters last ended for which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) accounts have been provided to the contrary, and without limiting any other remedy available Agent pursuant to Clause 10.2 is less than [*]. The Agent shall use the Application of Proceeds Formulation to determine whether an amount equal to the Company 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 or any other party, dividends shall not accrue distributions and interest paid or be payable in respect connection therewith received by the Shareholder, NCL America Holdings and/or Arrasas will be paid to the Borrower by way of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legenddividend promptly on receipt.

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

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

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

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

Dividends. (a) Holders From and after the date of this Agreement until the earlier of the Company Merger Effective Time and termination of this Agreement pursuant to Section 8.1, neither the Company nor PECO shall authorize, make, declare or set aside any dividend or other distribution to its stockholders without the prior written consent of the Company (in the case of PECO) or PECO (in the case of the Company); provided, however, that the written consent of the other Party shall not be required for the authorization and payment by the Company of dividends in the Ordinary Course of Business (“Company Permitted Dividend”) or by PECO of dividends in the Ordinary Course of Business (a “PECO Permitted Dividend”, and together with the Company Permitted Dividends, each a “Permitted Dividend”), as applicable. In the event that (i) a Company Permitted Dividend has (A) a record date prior to the Company Merger Effective Time and (B) has not been paid as of immediately prior to the Company Merger Effective Time (regardless of the declared date for the payment thereof), the holders of Company Shares shall be entitled to receive such distribution from the Company immediately prior to the time such shares are exchanged pursuant to Article II or (ii) a PECO Permitted Dividend has (A) a record date prior to the Company Merger Effective Time and (B) has not been paid as of immediately prior to the Company Merger Effective Time (regardless of the declared date for the payment thereof), the holders of shares of Series A Preferred PECO Common Stock shall be entitled to cumulative receive such distribution from PECO in connection with the Closing. Notwithstanding the foregoing and any other restriction on dividends on and other distributions in this Agreement, each of the Series A Preferred Stock payable semiannuallyCompany, which dividends any Company Subsidiary, PECO, and any PECO Subsidiary shall be declared by permitted (without the Board of Directors or a duly authorized committee thereof, out consent of the assets other Party) to declare and make dividends and distributions, including under Sections 858 or 860 of the Code, prior to the Closing if the making of such dividends or distributions prior to the Closing is necessary for the Company legally available thereforor PECO, as applicable, to maintain its status as a REIT under the Code or applicable state Law and avoid the imposition of any entity level income or excise Tax under the Code or applicable state Law. If the Company or PECO, as applicable, determines that it is necessary to declare a dividend or distribution (whether a Company Permitted Dividend, a PECO Permitted Dividend or otherwise), it shall notify the PECO or the Company, as applicable, as soon as reasonably practicable prior to such declaration. (b) The Parties shall take such actions as are necessary to ensure that if the holders of Company Common Stock and Company Partnership Units receive the Company Permitted Dividend for a particular period prior to the Closing Date, or the holders of PECO Common Stock and PECO OP Units receive the PECO Permitted Dividend for a particular period prior to the Closing Date, then the holders of Company Common Stock and Company Partnership Units or the holders of PECO Common Stock and PECO OP Units, as the case may be, shall be payable semiannually commencing on entitled to receive the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “applicable Permitted 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 as necessary to result in an amount equal to the greater holders 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 Company Common Stock in such dividend period times (B) and Company Partnership Units and the number holders of shares of PECO 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 and PECO OP Units receiving the applicable Permitted Dividend Payment Date is (or any portion thereof) covering the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately same periods prior to the next Dividend Payment Closing Date. Dividends payable on The timing of any such dividends will be coordinated so that, if either the holders of Company Common Stock and Company Partnership Units or the holders of PECO Common Stock and PECO OP Units receive 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 distribution for a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) particular period prior to the contraryClosing Date, then the holders of Company Common Stock and without limiting any other remedy available Company Partnership Units and the holders of PECO Common Stock and PECO OP Units, respectively, shall receive a distribution for such period prior to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendClosing Date.

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) Holders other than dividends or distributions payable solely in Capital Stock of shares of Series A Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided thatRayonier or, in the case of dividends paid to Rayonier or any of its Subsidiaries, 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 Capital Stock of Rayonier or any of its Subsidiaries at any time outstanding except as provided in this Section 5.03(a). So long as no Default or Event of Default has occurred and is then continuing, Rayonier and its Subsidiaries shall be permitted to redeem, repurchase or otherwise acquire or retire any of their respective Capital Stock and declare and pay dividends on their respective Capital Stock from time to time in amounts determined by Rayonier or such Subsidiaries; provided, however, that subject to the terms of the next sentence, in no event that on shall Rayonier (or, after any Dividend Payment Additional Borrower Effective Date, the Company Additional Borrower) declare or pay 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)) 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 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 aggregate amount dividends actually paid during such period. Notwithstanding the foregoing, unless at the time of such distribution any Event of Default has occurred and is not then continuing under Section 6.01(a), Rayonier (and, if applicable any Additional Borrower) shall be permitted to declare or and pay such dividend or incur such liability either (x) whatever amount of cash dividends is necessary for Rayonier to maintain its tax status as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendREIT.

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

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

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

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

Dividends. (a) Holders As of shares January 1, 2006, the holders of Series A C Preferred Stock shall be entitled to receive cumulative dividends ("Cumulative Dividends") which shall accrue on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the daily 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 Dividend Rate (this and certain other capitalized terms used herein have the respective meanings given in Section 9 hereof) multiplied by the Liquidation Preference per share of Series C Preferred Stock. Cumulative Dividends shall be payable quarterly in arrears on March 31, June 30, September 30 and December 31 of each year (each of such dates being a "Dividend Payment Date") and shall be paid in cash out of funds legally available therefor. To the extent accrued and unpaid Cumulative Dividends are not paid on the applicable Dividend Payment Date, such unpaid Cumulative Dividends shall be increased on a daily basis by an amount equal to (i) the amount otherwise payable in respect sum of such share of Series A Preferred Stock in accordance with the foregoing paragraph and Dividend Rate plus one percent (1%) multiplied by (ii) the product amount of such unpaid Cumulative Dividends (A) a "Dividend Increase"). Each such daily Dividend Increase shall be compounded on each subsequent Dividend Payment Date by increasing all Cumulative Dividends which were not paid as of the end of the day of such subsequent Dividend Payment Date by the aggregate dividends payable per share of Common Stock all Dividend Increases which have not previously been so compounded (so that the accrued and unpaid Cumulative Dividends shall include the amount of such Dividends Increases), and thereafter such increased Cumulative Dividends shall further increase daily as set forth in such dividend period times (B) the previous sentence. Any calculation of the amount of Cumulative Dividends accrued shall be made based on a 365-day year and on the number of shares days actually elapsed during the applicable calendar quarter. Any payments by the Company of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(aCumulative Dividends shall be applied to first pay any all accrued and unpaid Dividend Increases (to the extent not compounded as Cumulative Dividends), a dividend period with respect to a Dividend Payment Date is then shall pay all accrued and unpaid Cumulative Dividends which had accrued and were unpaid as of the period commencing on the preceding Dividend Payment Date (or, if there is no preceding most recent Dividend Payment Date, and then shall pay any remaining Cumulative Dividends. In addition to the Issue Daterestrictions on dividends set forth in Section 7(c)(iii), the Company shall not declare or pay any dividends on or with respect to any series or class of stock other than Series C Preferred Stock unless all accrued and unpaid Cumulative Dividends which had accrued and were unpaid as of the most recent Dividend Payment Date and all accrued and unpaid Dividend Increases (to the extent not compounded as Cumulative Dividends) have been declared and ending paid by the Company. (b) In the event any dividends are declared or paid or any other distribution is made on or with respect to the Common Stock, the holders of the Series C Preferred Stock as of the record date established by the Board of Directors for such dividend or distribution on the day Common Stock shall be entitled to receive dividends ("Participating Dividends") per share of Series C Preferred Stock, in an amount (whether in the form of cash, securities or other property) determined by multiplying (i) the Liquidation Preference per share of Series C Preferred Stock plus the amount of any declared or accrued but unpaid Dividends thereon as of the record date of such Participating Dividend by (ii) the Applicable Rate. Such Participating Dividends shall be payable to the holders of the Series C Preferred Stock as of the date immediately prior to the next Dividend Payment Date. Dividends record date for such dividend or distribution on the Common Stock, which date shall be the record date for the Participating Dividends, and such dividends are to be payable on a Dividend Payment Date shall be payable the same payment date established by the Board of Directors for the payment of such dividend or distribution on the Common Stock to Holders of record on the persons in whose name the Series C Preferred Stock is registered at the close of business on the day applicable record date. (c) No dividend shall be paid or declared on which any share of Common Stock, unless a dividend, payable in the Board same consideration and manner, is simultaneously paid or declared, as the case may be, on each share of Directors Series C Preferred Stock in an amount determined as set forth above. For purposes hereof, the term "dividends" shall include any pro rata distribution by the Company of cash, property, securities (including, but not limited to, rights, warrants or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(aoptions) or other property or assets to the contraryholders of the Common Stock, and without limiting whether or not paid out of capital, surplus or earnings. (d) Prior to declaring any other remedy available dividend or making any distribution on or with respect to shares of Common Stock, the Company or shall take all prior corporate action necessary to authorize the issuance of any other party, dividends shall not accrue or be securities payable as a dividend in respect of the Series C Preferred Stock. (e) The terms "declared dividends" and "dividends declared" or any similar reference to "declared but unpaid Dividends," whenever used in this Resolution with reference to shares initially issued any Holder who is contractually obligated of Series C Preferred Stock shall be deemed to appear and vote include dividends required by Section 2(c) hereof to be declared, whether or not the same have in favor of any proposal made fact been declared at a meeting of stockholders the time in question. (f) No dividend may be declared or paid in respect of the Company shares of Series C Preferred Stock, except to the extent permitted by and in order to effect accordance with the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or terms and conditions of the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendWorking Capital Facility Documents.

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

Dividends. (a) Holders The holders of shares of the Series A Preferred Stock shall be entitled to receive, when and as declared by the Board of Directors of the Corporation and upon the liquidation, dissolution or winding up of the Corporation, out of any funds legally available therefor, dividends at the annual rate of $ 0.01 per share (such dividend subject to equitable adjustment in the event of any stock dividend, stock split, combination, reorganization, recapitalization, reclassification or other similar event), payable in preference and priority to any payment of any cash dividend on the Common Stock. Such dividends shall accrue and be deemed to accrue semi-annually on each March 1 and September 1 whether or not earned or declared, and shall be cumulative so that if at any time such dividends on the Series A Preferred Stock payable semiannuallyshall not have been paid, which dividends or declared and set apart for payment, the deficiency shall be fully paid or declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and set apart for payment before any dividend shall be payable semiannually commencing paid on or declared or set apart for the Common Stock. Unless all accrued dividends on the 180th day following Series A Preferred Stock pursuant to this Section shall have been paid or declared and a sum sufficient for the Issue Date payment thereof set apart, (or the following Business Day if any such payment date is not a Business Dayi) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such no 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 declared, and no liability distribution shall be incurred in respect thereofmade, on any Common Stock, 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 ii) no shares of Common Stock in any dividend period with respect shall be purchased, redeemed or acquired by the Corporation and no amounts shall be paid into or set aside or made available for the purchase, redemption or acquisition thereof; provided, however, that this restriction shall not apply 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 repurchase of shares of Common Stock into held by employees, consultants, directors or officers of the Corporation which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect are subject to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on stock repurchase agreements under which the Board Corporation has the right to repurchase such shares at the original purchase price per share in the event of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect termination of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendemployment.

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

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

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

Dividends. (a) Holders of So long as any shares of Series B Preferred Stock shall be outstanding, the holders of such Series B Preferred Stock shall be entitled to receive, if legally payable by the Board of the Company, 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 Dividend Rate on the Liquidation Preference hereunder, payable semi-annually on the first Business Day of July and January of each year, commencing July 1, 1998. If the Board of the Company cannot legally declare or pay such dividends, then such dividends shall be 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 legally available for the payment of those dividends, and shall be paid- in-kind as soon as such dividends are legally payable. Any such dividend payable for the 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 dividend payable for the period after the date hereof shall be payable based on the Liquidation Preference set forth herein. Dividends may not be paid in cash. (b) So long as any shares of Series B Preferred Stock shall be outstanding, then, without the affirmative vote of the Required Holders, (i) no dividend whatsoever shall be paid or declared, and no distribution shall be made, on account of any Common Stock or Series A Preferred Stock and (ii) no shares of Common Stock or Series A Preferred Stock shall be entitled to cumulative dividends on repurchased, redeemed or acquired by the Series A Preferred Stock payable semiannuallyCompany, which dividends and no funds shall be declared by the Board of Directors paid into or set aside or made available for a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, sinking fund for the avoidance of doubtpurchase, 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 redemption or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendacquisition thereof.

Dividends. (a) Holders of shares of Series A Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be when, as and if declared by the Board of Directors or a duly authorized committee thereof, out of the assets funds of the Company legally available thereforfor payment, and cumulative dividends at the Dividend Rate (“Dividends”). Dividends on the Preferred Stock shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) paid quarterly in arrears at the rate per annum Dividend Rate in cash or, at the election of 6% per share on the Liquidation Preference; provided thatCompany, subject to receipt of any necessary Shareholder Approval (to the extent necessary), in the event that on any Dividend Payment Date, the Company is not permitted Common Stock as provided pursuant to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan 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 Section 4. For the avoidance of doubt, unless prohibited by applicable law, (i) the Board shall not fail to declare such Deferred Dividend Dividends on Preferred Stock and (ii) notwithstanding anything contained herein to the contrary, dividends on the Preferred Stock shall accrue for all fiscal periods during which the Preferred Stock is outstanding, regardless of whether the Company has earnings in any such period, whether there are funds legally available for the payment of such dividends and whether or not such dividends are authorized or declared. Dividends shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable arrears on such succeeding each Dividend Payment Date to the holders of record of Preferred Stock as they appear on the Company’s stock register at the close of business on the relevant Dividend Record Date). The amount of dividends Dividends payable for any other period that is shorter or longer less than a full semiannual dividend quarterly Dividend period will (based upon the number of days elapsed during the period) shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following . (b) No dividend shall be declared or paid upon, or any sum set apart for the Meeting End Datepayment of dividends upon, in any Outstanding share of the event that dividends are paid on shares of Common Preferred Stock in with respect to any dividend period with respect to unless all dividends for all preceding dividend periods have been declared and paid, or declared and a sufficient sum has been set apart for the Series A payment of such dividend, upon all Outstanding shares of Preferred Stock, then . (c) No dividends or other distributions (other than a dividend shall or distribution payable solely in shares of Parity Stock or Junior Stock (in the case of Parity Stock) or Junior Stock (in the case of Junior Stock) and cash in lieu of fractional shares) may be payable in respect declared, made or paid, or set apart for payment upon, any Parity Stock or Junior Stock, nor may any Parity Stock or Junior Stock be redeemed, purchased or otherwise acquired for any consideration (or any money paid to or made available for a sinking fund for the redemption of each share any Parity Stock or Junior Stock) by the Company or on behalf of Series A Preferred Stock for such period in an amount equal to the greater of Company (except by (i) conversion into or exchange for shares of Parity Stock or Junior Stock (in the amount otherwise payable case of Parity Stock) or Junior Stock (in respect the case of such share Junior Stock) and cash solely in lieu of Series A Preferred fractional shares of Parity Stock or Junior Stock (in accordance with the foregoing paragraph case of Parity Stock) or Junior Stock (in the case of Parity Stock) and (ii) payments in connection with the product satisfaction of employees’ tax withholding obligations pursuant to employee benefit plans or outstanding awards (Aand payment of any corresponding requisite amounts to the appropriate governmental authority), unless all Accumulated Dividends (as of the date of such declaration, payment, redemption, purchase or acquisition) shall have been or contemporaneously are declared and paid in cash. Further, no Dividends or other distributions (other than a dividend or distribution payable solely in shares of Junior Stock and cash in lieu of fractional shares) may be declared, made or paid, or set apart for payment upon, any Junior Stock (except payments in connection with the aggregate satisfaction of employees’ tax withholding obligations pursuant to employee benefit plans or outstanding awards (and payment of any corresponding requisite amounts to the appropriate governmental authority) unless the payment of the dividend in respect of the Preferred Stock for the most recent dividend period ending on or prior to the date of such declaration or payment has been declared and paid in cash or declared and a sum of cash sufficient for the payment thereof set aside for such payment. Notwithstanding the foregoing, if full dividends payable 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 Common Preferred Stock in and such dividend period times Parity Stock bear to each other at the time of declaration. (Bd) the number Holders of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes shall not be entitled to any dividend, whether payable in cash, property or stock, in excess of full cumulative dividends (it being understood that this Section 3(d) shall not limit the Company’s obligations pursuant to Section 3(a), a dividend period with respect to a ). (e) If any Dividend Payment Date falls on a day that is not a Business Day, the period commencing required payment will be on the preceding 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. (f) The holders of shares of Preferred Stock at the close of business on a Dividend Record Date shall be entitled to receive the dividend payment on those shares on the corresponding Dividend Payment Date (or, if there is no preceding notwithstanding the conversion of such shares in accordance with Sections 8 or 9 following such Dividend Record Date or the Company’s default in payment of the dividend due on such Dividend Payment Date. In the case of conversion of shares of Preferred Stock pursuant to Section 5 following the close of business on a Dividend Record Date but prior to the corresponding Dividend Payment Date, the Issue Dateholders of such shares shall not be entitled to receive the corresponding dividend payment following conversion (it being understood that the value thereof is included in the conversion terms set forth in Section 5). (g) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) herein to the contrary, and without limiting any other remedy available to the Company or extent that any other partyHolder’s right to participate in any Dividend would result in the Holder exceeding the Beneficial Ownership Limitation, dividends then the rights appurtenant to such Dividend to which such Holder is entitled pursuant hereto shall not accrue or be payable limited to the same extent provided in respect of shares initially issued any Holder who is contractually obligated to appear and vote Section 11 hereof. (h) Except as provided in favor of any proposal made at a meeting of stockholders of Section 8, the Company shall make no payment or allowance for unpaid dividends, whether or not in order to effect arrears, on converted shares of Preferred Stock or for dividends on the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates shares of either) fails so to appear and vote in favor. Any shares Common Stock issued to such Holders shall bear the Stockholder Approval Legendupon conversion.

Dividends. (a) Holders The holders of shares of Series A Floating Rate Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be as and if declared by the Board of Directors or a duly authorized committee thereofof the Company, out of the assets of the Company any funds legally available thereforfor the purpose, dividends which accrue under this Paragraph 4, which shall be paid quarterly in arrears, on the fifteenth day of each April, July, October, and January, with respect to the preceding calendar quarter. (b) The shares of Series A Floating Rate Preferred Stock shall be payable semiannually commencing on accrue dividends upon the 180th day following Stated Value of such shares at a rate equal to the Issue Date "Reference Rate" (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (xhereinafter defined) 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 effect on the first succeeding Dividend Payment Date on which day of the Company is second month of each calendar quarter. However, if from time to time any accrued dividends have not prohibited from declaringbeen timely paid in accordance with this Paragraph 4 and are in arrears, paying and incurring then the liability in respect shares of Series A Floating Rate Preferred Stock shall accrue dividends upon the Stated Value of such Deferred Dividend shares at the "Arrearage Rate" (andas hereinafter defined) as in effect on the first day of each calendar quarter, for provided, that the avoidance of doubt, such Deferred Dividend Arrearage Rate shall apply from the date from which dividends become in arrears until all dividends then due and owing have been paid. Accrued dividends shall be payable in addition to, calculated 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 paid upon the basis of a 360-360 day year consisting and equal calendar quarters of twelve 30-day months90 days each. (c) Unpaid dividends shall cumulate. Commencing on and following the Meeting End DateNo interest, or sum of money in the event that dividends are paid on shares lieu of Common Stock in any dividend period with respect to the Series A Preferred Stockinterest, then a dividend shall be payable in respect of each share any dividend payment or payments which may be in arrears. (d) No cash dividend or other cash distribution shall be declared or paid on shares of common stock or on other stock of the Corporation ranking junior to the 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 Floating Rate Preferred Stock in accordance with the foregoing paragraph payment of dividends unless 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 until all accrued and unpaid Series A Floating Rate Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) dividends have been concurrently declared and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendconcurrently paid.

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

Dividends. (a) Holders Prior to the expiration or earlier termination of shares this Agreement, the holders of Series A Preferred Stock Voting Trust Certificates shall be entitled to cumulative receive payments equal to the cash dividends, if any, received by the Trustee from the Corporation, ratably in proportion to their respective number of Beneficial Shares then outstanding. In lieu of receiving such cash dividends on and paying the Series A Preferred Stock payable semiannuallysame to the holders of Voting Trust Certificates, which the Trustee may instruct the Corporation in writing to pay such cash dividends directly to the holders of Voting Trust Certificates. Upon such instructions being given by the Trustee to the Corporation, and unless explicitly limited or until revoked by the Trustee, all liability of the Trustee with respect to such cash dividends shall be declared terminate. The Trustee may at any time revoke such instructions and by written notice to the Board of Directors or a duly authorized committee thereof, out of Corporation direct it to make dividend payments to the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) Trustee. The Corporation shall not be declared liable to any holder of Voting Trust Certificates or to any person claiming to be entitled to any such cash dividends by reason of following ny written instructions of the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability Trustee. (b) If any dividend in respect of such Deferred Dividend (and, for Restricted Securities owned of record by 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 Trustee 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 Datepaid, in whole or in part, in capital stock of the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred StockCorporation, 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 Trustee shall hold, subject to the terms of this Agreement, the certificate or certificates for shares of such share stock which are received by him on account of Series A Preferred Stock in accordance with the foregoing paragraph such dividend; and (ii) the product holder of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) each Voting Trust Certificate shall be entitled to receive a Voting Trust Certificate issued under this Agreement for the number of shares of Common Stock into which capital stock received as such share dividend in respect of Series A Preferred Stock is then convertible. For purposes such holder's Beneficial Shares. (c) Holders entitled to receive the dividends above shall be those registered as holders of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing Voting Trust Certificates on the preceding Dividend Payment Date (books of the Trustee at the close of business on the record date fixed by the Corporation for determining those holders of its capital stock entitled to receive such dividends or, if there is the Corporation has fixed no preceding Dividend Payment Datesuch record date, the Issue Date) and ending then on the day immediately prior date fixed by the Trustee for the purpose of determining the holders of Voting Trust Certificates entitled to receive such payment or distribution, those registered as such at the next Dividend Payment Date. Dividends payable close of business on a Dividend Payment Date the date so fixed by the Trustee; PROVIDED, that if no such record date is set by the Corporation or the Trustee, then in such event the record date for determining shall be payable to Holders of record on the close of business on the day on which the Board preceding such payment of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legenddistribution.

Dividends. (a) Holders of shares of outstanding Series A Preferred Stock Shares shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be if, when and as declared by the Board of Directors or a duly authorized committee thereof, out of funds legally available therefore, cash dividend payments in the assets amount of the Company legally available thereforDividend Yield on each Series A Preferred Share, payable quarterly for each of the quarters ending March, June, September and shall be December of each year, payable semiannually commencing in arrears on the 180th day following the Issue Date (or the following first Business Day if any such payment date is not a Business Day) of each succeeding April, July, October and January, respectively (each such date being hereinafter referred to herein as a “"Preferred Dividend Payment Date”) at the rate per annum of 6% per share ". The first dividend shall be payable on the Liquidation Preference; provided thatPreferred Dividend Payment Date corresponding to the quarter in which the Issuance Date falls. Each such dividend will be payable to holders of record as they appear on the stock books of the Corporation on such record dates, in not less than 10 nor more than 50 days preceding the event that on any related Preferred Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared fixed by the Board of Directors. Dividends on each Series A Preferred Share shall accrue on a daily basis and compound quarterly commencing on the Issuance Date for such share and continuing to, but not including, the Redemption Date, or Conversion Date for such share (or other date on which such Series A Preferred Share is no longer outstanding) and accrued dividends for each quarterly dividend period shall accumulate as Unpaid Dividend Yield, to the extent not be paid or payable paid, on such the Preferred Dividend Payment Date and no liability for the quarter in which they accrued. Dividend payments under this paragraph (a) shall accrue whether or not the Corporation shall have earnings, whether or not there shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and funds legally available for 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 payment of such Deferred Dividend dividends and whether or not such dividends are declared. (andb) So long as any Series A Preferred Shares shall remain outstanding, for the avoidance of doubt, such Deferred Dividend shall be no dividend (other than a dividend 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 or rights to obtain Common Stock or any dividend period with respect class of capital stock of the Corporation which is junior to the Series A Preferred Stock, then a dividend Shares as to dividends and upon liquidation) shall be payable in respect declared, nor shall the Corporation make any other distribution or payment or set aside anything of each share value for distribution or payment on, or redeem, repurchase or otherwise acquire any shares of, the Common Stock of the Corporation or any other class of stock or series thereof ranking junior to the Series A Preferred Stock for such period Shares in an amount equal to the greater payment of dividends or upon liquidation (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 other than a redemption or purchase of shares of Common Stock into which such share of the Corporation made for purposes of an employee incentive or benefit plan of the Corporation or any of its subsidiaries) unless the full amount of Unpaid Dividend Yield, if any, accumulated on all outstanding Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Shares through all past Preferred Dividend Payment Date is Dates shall have been paid and not refunded. No dividend shall be declared on any share or shares on any class of stock of the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable Corporation or series thereof ranking on a Dividend Payment Date shall be payable to Holders of record on parity with the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable Series A Preferred Shares in respect of payment of dividends or upon liquidation for any prior dividend payment period of said parity stock unless there shall have been declared on all shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders then outstanding of the Company Series A Preferred Shares like proportional dividends determined ratably in order proportion to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or respective Unpaid Dividend Yield accumulated to date for all previous quarterly dividend periods on all outstanding Series A Preferred Shares and the Affiliates dividends accumulated on all outstanding shares of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendsaid parity stock.

Dividends. (a) Holders From and after the date of shares issuance of any share of the Series A 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 cumulative dividends on the Series A Preferred Stock payable semiannuallypaid in cash only when, which dividends shall be as and if declared by the Board of Directors or a duly authorized committee thereof, out of the assets funds legally available therefor or upon a liquidation or redemption of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A D Preferred Stock in accordance with the foregoing paragraph provisions of this Certificate of Designation; 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 of the Series D Preferred Stock 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. All accrued and accumulated dividends on the shares of the Series D Preferred Stock as accrued pursuant to this Section 3(a) shall be prior and in preference to any dividend on any other series of Preferred Stock or the Common 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 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 of Common Stock. This Corporation may elect to pay dividends 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 product of Nasdaq Capital Market and (Aiii) the aggregate average daily trading dollar volume of this Corporation’s Common Stock for ten (10) trading days in any period of twenty (20) consecutive trading days on the Nasdaq Capital Market is greater than Twenty Seven Million Five Hundred Thousand Dollars ($27,500,000). (b) Any dividends payable per share or distributions, other than dividends or distributions accruing or paid on shares of the Series D Preferred Stock pursuant to Section 3(a), shall be distributed among all holders of Common Stock and Preferred Stock in such dividend period times (B) proportion to the number of shares of Common Stock into which that would be held by each such share holder if all shares of Series A preferred stock were converted to Common Stock at the then effective conversion rate without regard to any limitations on the conversion of the Preferred Stock is then convertible. For purposes contained in the Certificate of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendIncorporation.

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

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

Dividends. (a) From the Issue Date, the Holders of the outstanding shares of Series A Senior Preferred Stock shall be entitled to cumulative receive, whether or not earned or declared and whether or not funds are legally available for the payment of such dividends, dividends on the Series A each share of Senior Preferred Stock payable semiannually, which at a rate per annum equal to the Applicable Rate then in effect of the Liquidation Preference per share of Senior Preferred Stock. All dividends shall be cumulative, whether or not earned or declared by the Board of Directors and whether or a duly authorized committee thereof, out of the assets of the Company not funds are legally available thereforfor the payment of such dividends, and shall be payable semiannually commencing on the 180th day following a daily basis from the Issue Date (or the following Business Day if any such payment date is not and shall compound on a Business Day) (each such date being referred to herein as quarterly basis at a “Dividend Payment Date”) at the rate per annum of 6% per share on equal to the Applicable Rate then in effect. Dividends for each Quarterly Dividend Period shall be paid with respect to such Quarterly Dividend Period by increasing the Liquidation Preference; provided that, Preference in effect at the event that on any beginning of such Quarterly 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 Period 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 cumulated and accrued during such Quarterly Dividend Period. (b) All dividends paid with respect to shares of the Senior Preferred Stock pursuant to paragraph (3)(a) shall be paid pro rata to the Holders entitled thereto. (c) Dividends payable on the Senior Preferred Stock for any other period that is shorter or longer less than a full semiannual dividend period will year shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following months and, for periods not involving a full calendar month, the Meeting End Date, in the event that dividends are paid on shares actual number of Common Stock in any dividend period with respect days elapsed (not 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 exceed 30 days). (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 No dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date or other distributions shall be payable to Holders of record on the close of business on the day on which declared by the Board of Directors or a duly authorized committee thereof declares paid or set apart for payment by the dividend payable Corporation on any Parity Securities for any period unless full cumulative dividends (each, a “including any increase or deemed increase in the Liquidation Preference above the Initial Liquidation Preference pursuant to Section 3 hereof) have been or contemporaneously are declared and paid in full in cash on the Senior Preferred Stock for all Quarterly Dividend Record Date”). Notwithstanding anything in this Section 3(a) Periods terminating on or prior to the contrarydate of payment of such dividends or other distributions on such Parity Securities. (ii) So long as any share of the Senior Preferred Stock is outstanding, the Corporation shall not declare, pay or set apart for payment any dividend or other distribution on any of the Junior Securities (other than dividends in the form of the same class of Junior Securities), or make any payment on account of, purchase, redeem, retire or set apart for payment money for a sinking or other similar fund for, the purchase, redemption or other retirement of, any of the Junior Securities or any warrants, rights, calls or options exercisable for or convertible into any of the Junior Securities whether in cash, obligations or shares of the Corporation or other property (other than in exchange for Junior Securities), and without limiting shall not permit any corporation or other remedy available entity directly or indirectly controlled by the Corporation to purchase or redeem any of the Company Junior Securities or any such warrants, rights, calls or options (other partythan in exchange for Junior Securities). (iii) So long as any share of the Senior Preferred Stock is outstanding, dividends the Corporation shall not accrue (except with respect to dividends as permitted by paragraph (3)(d)(i)) make any payment on account of, purchase, redeem, retire or be payable in respect of shares initially issued set apart for payment money for a sinking or other similar fund for, the purchase, redemption or other retirement of, any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company Parity Securities or any warrants, rights, calls or options exercisable for or convertible into any of the Parity Securities whether in order cash, obligations or shares of the Corporation or other property, and shall not permit any corporation or other entity directly or indirectly controlled by the Corporation to effect purchase or redeem any of the Stockholder Approval (Parity Securities or whose transferor Holder was so obligated) if any such Holder (warrants, rights, calls or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendoptions.

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

Dividends. Cinergy shall not, nor shall it permit any of its subsidiaries to, (ai) Holders of shares of Series A Preferred Stock shall be entitled to cumulative declare, set aside or pay any dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability make other distributions in respect of any 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 Deferred Dividend (anddividends in accordance with past dividend practice; provided, for that if the avoidance of doubt, such Deferred Dividend shall be payable in addition to, Cinergy Effective Time does not occur between a record date 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 payment date of a 360-day year consisting regular quarterly dividend, a special dividend may be declared and paid in respect of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Cinergy Common Stock in any dividend period with respect to the Series A Preferred Stockquarter 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, then a which dividend shall be payable in respect of each share of Series A Preferred Stock for such period in does not exceed an amount equal to the greater product of (i) a fraction the amount otherwise payable (x) numerator of which is equal to the number of days between the last payment date of a regular quarterly dividend and the record date of such special dividend (excluding such last payment date but including the record date of such special dividend) and (y) the denominator of which is equal to 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 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 issued under the terms of this Agreement, and (D) to the extent advisable in the exercise of the fiduciary duties of the Board of Directors of Cinergy, for the declaration and payment of a customary share purchase rights plan, provided, that, (1) Cinergy shall provide Duke prior notice of any such declaration or payment and (2) in connection with any such declaration or payment, the Board of Directors of Cinergy and Cinergy shall cause (x) this Agreement and the transactions contemplated hereby to not result in a “Distribution Date” (as such term may be defined in any such share purchase rights plan) or similar event under such share purchase rights plan and (y) any such share purchase rights plan to be inapplicable in all respects to this Agreement, the Duke Merger, the Cinergy Merger and the other transactions contemplated hereby; and (ii) split, combine, reclassify or take similar action with respect to any of its capital stock or share capital or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or comprised in its share capital, (iii) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or other reorganization, or (iv) 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 Series A Preferred funding the Cinergy Employee Stock Option Plans or employee stock ownership or dividend reinvestment and stock purchase plans, or (C) mandatory repurchases or redemptions of preferred stock of Cinergy’s subsidiaries in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendterms thereof.

Dividends. (a) Holders of shares of Series A Preferred Stock shall be entitled to cumulative dividends on the Series A receive, with respect to each share of Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereofStock, out of the assets funds of the Company legally available thereforfor payment, and shall be payable semiannually commencing cash dividends (“Cash Dividends”) on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share Accrued Value in effect on the Liquidation Preference; provided that, in the event that on any Dividend Payment Record 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, at the Dividend Rate, payable on each Dividend Payment Date. Commencing Such Cash Dividends shall be payable in arrears on each Dividend Payment Date for the applicable Dividend Period, to the Holders as they appear on the Company’s stock register at the Transfer Agent at the Close of Business on the relevant Dividend Record Date. Dividends on the Preferred Stock shall accumulate and become Accrued Dividends on a day-to-day basis from the last day of the applicable Dividend Period until Cash Dividends are paid pursuant to this Section 3(a) in respect of such Accrued Dividends or pursuant to Sections 3(b), 3(c) and 3(d). If a Dividend Payment Date is not a Business Day, then any Cash Dividend in respect of such Dividend Payment Date shall be due and payable on the first Business Day following such Dividend Payment Date. (b) Notwithstanding anything to the contrary in Section 3(a), the Company may, at its sole election, elect with respect to the Accrued Dividends for any Dividend Period (a “Non-Cash Dividend Election”) to increase the Accrued Value by the Dividend Rate (decreased proportionately to the extent of any cash paid in respect of such Accrued Dividend for such Dividend Period (e.g., if 25% of the Accrued Dividends for such Dividend Period is paid in cash, the rate would be reduced by 1.0% to 3.0%)) in lieu of paying such Accrued Dividends in cash (in part or in full), such increase to be effective at the Opening of Business on the day following the Meeting End last day of such Dividend Period. If the Company fails to pay a Cash Dividend in respect of the Accrued Dividends for any Dividend Period, in whole or in part, on or prior to the respective Dividend Payment Date and does not make a Non-Cash Dividend Election in respect thereof, the Company shall be deemed to have made a Non-Cash Dividend Election for all purposes of this Certificate of Designations solely with respect to and to the extent of such portion of such Accrued Dividends for such Dividend Period as to which a Cash Dividend is not paid. To the extent any Holder shall become liable for or subject to any taxes, levies, imposts, duties, fees, assessments, withholding or other charges of whatever nature resulting from any adjustment to the Accrued Value pursuant to this Section 3(b), the Company shall promptly indemnify and hold harmless such Holder against any such amounts at the highest maximum combined marginal federal, state and local income tax rates to which any such Holder may be subject Any Non-Cash Dividend Election as to any Dividend Period shall be effective only if notice thereof is delivered to holders of Preferred Stock prior to the last day of such Dividend Period. (c) Notwithstanding anything to the contrary herein, (x) if any shares of Preferred Stock are converted into Common Stock on a Conversion Date in accordance with this Certificate of Designations during the period between the last day of a Dividend Period and the Close of Business on the corresponding Dividend Payment Date and the Company has not made a Non-Cash Dividend Election in respect of such Dividend Period, then the amount of the Accrued Dividends in respect of such Dividend Period shall be added to the Accrued Value for purposes of such conversion; and (y) if any shares of Preferred Stock are converted into Common Stock in accordance with this Certificate of Designations on a Conversion Date during the period between the Close of Business on any Dividend Record Date and the Close of Business on the corresponding Dividend Payment Date, the Accrued Dividends with respect to such shares of Preferred Stock, at the Company’s option, shall either (i) be paid in cash on or prior to the date of such conversion or (ii) not be paid in cash and be added to the Accrued Value for purposes of such conversion. For the avoidance of doubt, such Accrued Dividends shall include dividends accruing from, and including, the last day of the most recently preceding Dividend Period to, but not including, the applicable Conversion Date. The Holders at the Close of Business on a Dividend Record Date shall be entitled to receive any dividend paid as a Cash Dividend on those shares on the corresponding Dividend Payment Date. (d) So long as any share of the Preferred Stock remains outstanding, no dividend or distribution shall be declared or paid on, and no redemption or repurchase shall be agreed to or consummated of, Parity Stock, Common Stock or any other shares of Junior Stock, unless all Accrued Dividends have been paid (including by way of an increase to the Accrued Value in accordance with Section 3(b)) and no such dividend or distribution or redemption or repurchase shall be paid or payable in cash for any period unless the Preferred Stock has been paid full Cash Dividends in respect of the same period; provided, however, that the foregoing limitation shall not apply to (i) a dividend payable on Common Stock or other Junior Stock in shares of Common Stock or other Junior Stock, (ii) the acquisition of shares of Common Stock or other Junior Stock in exchange for shares of Common Stock or other Junior Stock and the payment of cash in lieu of fractional shares of Common Stock or other Junior Stock; (iii) purchases of fractional interests in shares of Common Stock or other Junior Stock pursuant to the conversion or exchange provisions of shares of other Junior Stock or any securities exchangeable for or convertible into such shares of Common Stock or other Junior Stock; (iv) redemptions, purchases or other acquisitions of shares of Common Stock or other Junior Stock in connection with the administration of any employee benefit plan in the event that ordinary course of business, including, without limitation, the forfeiture of unvested shares of restricted stock or share withholdings upon exercise, delivery or vesting of equity awards granted to officers, directors and employees and the payment of cash in lieu of fractional shares of Common Stock or other Junior Stock; (v) any dividends or distributions of rights in connection with a stockholders’ rights plan or any redemption or repurchase of rights pursuant to any stockholders’ rights plan; and (vi) the exchange or conversion of Junior Stock for or into other Junior Stock and the payment of cash in lieu of fractional shares of other Junior Stock. Notwithstanding the preceding, if full cash dividends have not been paid on the Preferred Stock and any Parity Stock, cash dividends may be declared and paid on the Preferred Stock and such Parity Stock only so long as the cash dividends are declared and paid pro rata so that amounts of cash dividends declared and paid per share on the Preferred Stock and such Parity Stock shall in all cases bear to each other the same ratio that the Accrued Dividends per share on the shares of Preferred Stock and the accumulated and unpaid dividends on such other Parity Stock bear to each other. (e) The Company shall not declare, pay or set aside any dividends on shares of any other class or series of capital stock (other than dividends on shares of Common Stock payable in any dividend period with respect shares of Common Stock) unless (in addition to the Series A obtaining of any consents required in this Certificate of Designation or the Company’s certificate of incorporation) the Holders of shares of Preferred StockStock then outstanding shall first receive, then or simultaneously receive, a dividend shall be payable in respect of on each outstanding share of Series A Preferred Stock for such period in an amount at least equal to the greater sum of (i) the amount otherwise payable in respect of the aggregate Accrued Dividends then accrued on such share of Series A Preferred Stock in accordance with the foregoing paragraph and not previously paid and (ii) (A) in the case of a dividend on Common Stock or any class or series that is convertible into Common Stock, that dividend per share of Preferred Stock as would equal the product of (A1) the aggregate dividends dividend payable per on each share of such class or series determined, if applicable, as if all shares of such class or series had been converted into Common Stock in such dividend period times and (B2) the number of shares of Common Stock into which such issuable upon conversion of a share of Series A Preferred Stock, in each case calculated on the record date for determination of holders entitled to receive such dividend or (B) in the case of a dividend on any class or series that is not convertible into Common Stock, at a rate per share of Preferred Stock is then convertible. For purposes determined by (1) dividing the amount of this Section 3(a)the dividend payable on each share of such class or series of capital stock by the original issuance price of such class or series of capital stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such class or series) and (2) multiplying such fraction by an amount equal to the Accrued Value; provided that if the Company declares, pays or sets aside, on the same date, a dividend period with respect to a Dividend Payment Date is on shares of more than one class or series of capital stock of the period commencing on the preceding Dividend Payment Date (orCompany, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in to the Holders pursuant to this Section 3(a) to 3 shall be calculated based upon the contrary, and without limiting any other remedy available to dividend on the Company class or any other party, dividends shall not accrue or be payable series of capital stock that would result in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendhighest Preferred Stock dividend.

Dividends. (a) Holders of shares of Series A Preferred Stock The Holder shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be declared by the Board of Directors or a duly authorized committee thereofwhen, out of the assets of the Company legally available therefor, as and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable out of funds legally available for the payment of dividends, dividends at the Dividend Rate on such the Stated Value of each share of Series ___ Preferred Stock on and as of each Dividend Payment Due Date and no liability with respect to each Dividend Period. Dividends on the Series ___ Preferred Stock shall be incurred in respect thereofcumulative from the date of issue, whether or not declared for any reason, including if such declaration is prohibited under any outstanding indebtedness or borrowings of the Corporation or any of its Subsidiaries, or any other contractual provision binding on the Corporation or any of its Subsidiaries, and instead, such Deferred Dividend whether or not there 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, funds legally available for the avoidance of doubt, such Deferred Dividend payment thereof. (i) Each dividend shall be payable in addition toequal quarterly amounts on each Dividend Payment Due Date, and not in lieu ofcommencing October 31, any dividend which would ordinarily be payable 2004, to the Holders of record of shares of the Series ___ Preferred Stock, as they appear on the stock records of the Corporation at the close of business on such succeeding record date, 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 Period may be declared and paid at any time, without reference to any Dividend Payment Due Date). The amount , to Holders of record, not more than 15 days preceding the payment date thereof, as may be fixed by the Board of Directors. (ii) At the option of the Corporation, the dividend shall be paid either (x) in cash or (y) through the issuance of duly and validly authorized and issued, fully paid and nonassessable shares of the Common Stock valued at the Conversion Price, assuming for this purpose, that the applicable Dividend Payment Date is the applicable Conversion Date; provided, however, that if no funds are legally available for the payment of cash dividends payable on the Series ___ Preferred Stock, dividends shall be paid as provided in clause (y) above. (b) Except as provided in Section 4(d) hereof, the Holder shall not be entitled to any dividends in excess of the cumulative dividends, as herein provided, on the Series ___ Preferred Stock. (c) So long as any shares of the Series ___ Preferred Stock are outstanding, no dividends shall be declared or paid or set apart for payment or other distribution declared or made upon any of the Common Stock, nor shall any Common Stock be redeemed, purchased or otherwise acquired (other period that is shorter or longer than a full semiannual dividend period will be computed on the basis redemption, purchase or other acquisition of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock made for purposes of an employee incentive or benefit plan (including a stock option plan) of the Corporation or any Subsidiary) for any consideration by the Corporation, directly or indirectly, nor shall any moneys be paid to or made available for a sinking fund for the redemption of any shares of any Common Stock, unless in any dividend period each case (i) the full cumulative dividends required to be paid in cash on all outstanding shares of the Series ___ Preferred Stock shall have been paid or set apart for payment for all past Dividend Periods 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) sufficient funds shall have been paid or set apart for the product payment of the dividend for the current Dividend Period with respect to the Series ___ Preferred Stock. (Ad) If the aggregate dividends payable per share Corporation shall at any time or from time to time after the Issue Date declare, order, pay or make a dividend or other distribution (including, without limitation, any distribution of stock or other securities or property or rights or warrants to subscribe for securities of the Corporation or any of its Subsidiaries by way of dividend or spin-off) on shares of its Common Stock, then, and in each such case, in addition to the dividend obligation of the Corporation specified in Section 4(a) hereof, the Corporation shall declare, order, pay and make the same dividend or distribution to each Holder of Series ___ Preferred Stock in such dividend period times (B) as would have been made with respect to the number of shares Common Shares the Holder would have received had it converted all of Common Stock into which such share of its Series A D Preferred Stock is then convertible. For purposes of this Section 3(a)Shares, a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors such dividend or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legenddistribution.

Dividends. (a) Holders of shares of Series A Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of If the Company legally available therefor, and shall be payable semiannually commencing on after the 180th day following the Issue Date (date of issuance of this Warrant issue or the following Business Day if any such payment date is not a Business Day) (each such date being referred distribute to herein as a “Dividend Payment Date”) at the rate per annum all or substantially all holders 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 evidences of indebtedness, any dividend period with respect to other securities of the Series A Preferred StockCompany or any property, then assets or cash, and if such issuance or distribution does not constitute a dividend shall be payable in respect of each share of Series A Preferred Common Stock for Reorganization or a Common Stock Distribution (any such period in an amount equal to the greater of nonexcluded event being herein called a "Dividend"), (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 subject to purchase upon exercise of this Warrant shall be increased (but not decreased), effective immediately after the record date at which the holders of shares of Common Stock are determined for purposes of such Dividend, to a number determined by multiplying the number of shares of Common Stock subject to purchase immediately before such Dividend by a fraction, the numerator of which shall be the Fair Market Value per share of Series A Preferred outstanding Common Stock is on such record date and the denominator of which shall be the Fair Market Value per share of outstanding Common Stock of the Company on such record date less the then convertible. For purposes Fair Market Value of this Section 3(a)the evidences of indebtedness, a dividend period securities, cash, or property or other assets issued or distributed in such Dividend with respect to one share of Common Stock, and (ii) the Exercise Price shall be decreased (but not increased) to a Dividend Payment Date is price determined by multiplying the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment DateExercise Price then in effect by a fraction, the Issue Date) numerator of which shall be the number of shares of Common Stock subject to ______________________________________ Footnote continued from previous page. purchase upon exercise of this Warrant immediately before such Dividend and ending on the day denominator of which shall be the number of shares of Common Stock subject to purchase upon exercise of this Warrant immediately after such Dividend. If after the date of issuance of this Warrant the Company repurchases shares of Common Stock for a per share consideration which exceeds the Fair Market Value (as calculated immediately prior to such repurchase), then the next Dividend Payment Date. Dividends payable on number of shares of Common Stock purchasable upon exercise of this Warrant and the Exercise Price shall be adjusted in accordance with the foregoing provisions, as if, in lieu of such repurchases, the Company had (I) distributed 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 having a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) Fair Market Value equal to the contraryFair Market Value of all property and cash expended in the repurchases, and without limiting any other remedy available (II) effected a reverse split of the Common Stock in the proportion required to reduce the Company or any other party, dividends shall not accrue or be payable in respect number of shares initially issued any Holder who is contractually obligated of Common Stock outstanding from (A) the number of such shares outstanding immediately before such first repurchase to appear and vote in favor (B) the number of any proposal made at a meeting of stockholders of such shares outstanding immediately following all the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendrepurchases.

Dividends. (a) Holders The holders of shares of Series A the Deferral Preferred Stock Shares, Series-[●] shall be entitled to cumulative dividends on receive and the Series A Preferred Stock payable semiannuallyCorporation shall pay thereon, which dividends shall be as and when declared by the Board board of Directors or a duly authorized committee thereof, directors out of the assets monies of the Company legally available thereforCorporation properly applicable to the payment of dividends, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) at the product obtained by multiplying $1,000 by a rate per annum equal to the rate of 6% per share interest payable by the Trust on the Liquidation PreferenceTrust Notes as of the Issue Date, by (y) four; provided thatthat if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365 or 366, depending on the actual number of days in the event that applicable year, subject in each case to any applicable withholding tax. If on any Dividend Payment Date, Date the Company dividend payable on such date is not permitted to declare or pay paid in full on all of the Deferral Preferred Shares, Series-[●] then issued and outstanding, such dividend or incur such liability either (x) as the unpaid part thereof shall be paid on a matter subsequent date or dates to be determined by the board of law or (y) directors on which the Corporation shall have sufficient monies properly applicable, under the terms provisions of any loan agreementapplicable law and under the provisions of any trust indenture securing bonds, credit agreementdebentures or other securities of the Corporation, guarantyto the payment of the same. The holders of the Deferral Preferred Shares, or related agreement, such dividend (a “Deferred Dividend”) Series-[●] shall not be declared by entitled to any dividends other than or in excess of the Board of Directors, shall not be paid or payable on such Dividend cumulative preferential cash dividends hereinbefore provided. 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 made by electronic funds transfer or by cheque of or on behalf of the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be Corporation payable in addition to, and not in lieu of, lawful money of the United States (less any dividend which would ordinarily tax required to be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Datededucted) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date payment thereof shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if satisfy such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legenddividends.

Dividends. (a) Commencing on the Issue Date, Holders of shares of outstanding Series A B Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be when, as and if declared by the Board of Directors or a duly authorized committee thereof, out of the assets funds of the Company Corporation legally available therefor, subject to Section 4(f), pari passu with (and shall be payable semiannually commencing on otherwise with the 180th day following same treatment in all respects as that of) the Issue Date Corporation’s Mandatorily Convertible Cumulative Perpetual Preferred Stock, Series C (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment DateSeries C Preferred Stock”) cumulative dividends in arrears at the rate per annum of 615% per share on (i) the Liquidation Preference; provided thatAmount (equivalent to $1,500.00 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 Corporation, in cash or in kind through the event 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. Dividends will be payable on a Dividend Payment Date to Holders that on any are Record Holders of the applicable Record Date with respect to such Dividend Payment Date, but only to the Company is not permitted extent a dividend has been declared 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 Date. If any Dividend Payment Date on which the Company is not prohibited from declaringa Business Day, 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)date shall be paid on the next Business Day without adjustment and without interest. The amount Accumulations of dividends on shares of Series B Preferred Stock shall not bear interest. Dividends payable for any period other period that is shorter or longer than a full semiannual dividend period will Dividend Period (based on the number of actual days elapsed during the period) shall be computed on the basis of days elapsed over a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.

Dividends. (a) Holders The holders of outstanding shares of Series A AA Preferred Stock shall be entitled to cumulative receive preferential dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereofin cash, out of the assets any funds of the Company Corporation legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum time of 6% per share on the Liquidation Preference; provided thatdividends, in the event that on before 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 other distribution will be paid or payable declared and set apart for payment 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 any Common Stock or other class of stock which does not expressly provide that it ranks senior in any dividend period preference or priority to or on parity with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A AA Preferred Stock for (the Common Stock and such period in an amount equal to junior stock being hereinafter collectively the "Junior Stock") at the greater of (i) the amount otherwise rate of 7% per annum on the Stated Value per share plus any accrued and unpaid dividends that are payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph (“Regular Dividends”) and (ii) the product amount of any dividend paid or payable on any Junior Stock (Aon an as-converted basis), payable quarterly on the last day of a fiscal quarter, commencing June 30, 2007. Regular Dividends will accrue and accumulate whether or not the Corporation has earnings or profits, whether or not there are funds legally available for the payment of Regular Dividends and whether or not Regular Dividends are declared. (b) The dividends on the aggregate Series AA Preferred Stock at the rate provided above shall be cumulative whether or not earned, so that if at any time full cumulative dividends payable per share at the rate aforesaid on all shares of Common the Series AA Preferred Stock in such then outstanding from the date from and after which dividends thereon are cumulative to the end of the quarterly dividend period times (B) next preceding such time shall not have been paid or declared and set apart for payment, or if the number full dividend on all such outstanding Series AA Preferred Stock for the then current dividend period shall not have been paid or declared and set apart for payment, the amount of the deficiency shall be paid or declared and set apart for payment before any sum shall be set apart for or applied by the Corporation or a subsidiary of the Corporation to the purchase, redemption or other acquisition of the Series AA Preferred Stock or any shares of Common Stock into which such share any other class of stock ranking on a parity with the Series A AA Preferred Stock is then convertible("Parity Stock") and before any dividend or other distribution shall be paid or declared and set apart for payment on any Junior Stock and before any sum shall be set aside for or applied to the purchase, redemption or other acquisition of Junior Stock. (c) Dividends on all shares of the Series AA Preferred Stock shall begin to accrue and be cumulative from and after the date of issuance thereof (the "Dividend Commencement Date"). For purposes of this Section 3(a), a A dividend period with respect shall be deemed to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending commence on the day immediately prior following a quarterly dividend payment date herein specified and to end on the next succeeding quarterly dividend payment date herein specified. (d) Unless all accrued and unpaid dividends for all past Dividend Payment Date. Dividends payable Periods on a Dividend Payment Date outstanding shares of Series AA Preferred Stock have been declared and paid or set aside for payment in full, the Corporation shall be payable to Holders not redeem or purchase less than all of record the outstanding shares of Series AA Preferred Stock, except through an offer made on the close same terms to all holders of business on at least a majority of all shares of Series AA Preferred Stock at the day on which time of standing voting in person or by proxy at an annual meeting of the Board of Directors Corporation's stockholders or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a special meeting called for such purpose, or by the execution of stockholders a written consent by the record holders of a majority of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates outstanding shares of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendSeries AA Preferred Stock.

Dividends. Dividends that become payable on Restricted G-Shares -------------------- shall be held by the Company in escrow in accordance with the provisions of this Agreement. In this connection, on each Common Stock dividend payment date while any Restricted G-Shares remain outstanding and restricted hereunder (a) Holders each, a "RS Dividend Date"), the Company shall be deemed to have reinvested any cash dividend otherwise then payable on the Restricted G-Shares in a number of phantom shares of Series A Preferred Common Stock (including any fractional share) equal to the quotient of such dividend divided by the Market Value of a share of Common Stock on such RS Dividend Date and to have credited such shares to an unfunded book account in the Grantee's name (the "Dividend Escrow Account"). As of each subsequent RS Dividend Date, the phantom shares then credited to the Dividend Escrow Account shall be entitled deemed to cumulative dividends on receive a dividend at the Series A Preferred Stock payable semiannuallythen applicable dividend rate, which dividends shall be declared by reinvested in the Board same manner in such account in the form of Directors or additional phantom shares. If any dividend payable on any RS Dividend Date is paid in the form of Common Stock, then any such stock dividend shall be treated as additional Restricted G-Shares under this Agreement, with such additional Restricted G-Shares being subject to the same vesting and other restrictions as the Restricted G-Shares with respect to which dividends became payable, and with any fractional share being treated as a duly authorized committee thereof, out of cash dividend that is subject to the assets of escrow and reinvestment procedures in this Section 5. Any other non-cash dividends credited with respect to Restricted G-Shares shall be subject to the Company legally available thereforescrow and reinvestment procedures in this Section 5, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) valued for purposes of this Section 5 at the rate per annum fair market value thereof as of 6% per share on the Liquidation Preference; provided thatrelevant RS Dividend Date, as determined by the Committee in the event that on its sole discretion. At any Dividend Payment Vesting Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter shall deliver out of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect escrow to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the Grantee that whole number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior equal to the next whole number of phantom shares then credited to the Dividend Payment Escrow Account as the result of the deemed investment and reinvestment in phantom shares of the dividends attributable to the Restricted G-Shares on which restrictions lapse at such Vesting Date. Dividends payable on a Dividend Payment Date The value of any fractional share shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything paid in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendcash.

Dividends. (a) Holders of shares of Series A Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of If the Company legally available therefor, and shall be payable semiannually commencing on after the 180th day following the Issue Date (date of issuance of this Warrant issue or the following Business Day if any such payment date is not a Business Day) (each such date being referred distribute to herein as a “Dividend Payment Date”) at the rate per annum all or substantially all holders 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 evidences of indebtedness, any dividend period with respect to other securities of the Series A Preferred StockCompany or any property, assets or cash, and if such issuance or distribution does not constitute a Common Stock Reorganization or a Common Stock Distribution (any such nonexcluded event being herein called a "Dividend") 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 either, (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 subject to purchase upon exercise of this Warrant shall be increased (but not decreased), effective immediately after the record date at which the holders of shares of Common Stock are determined for purposes of such Dividend, to a number determined by multiplying the number of shares of Common Stock subject to purchase immediately before such Dividend by a fraction, the numerator of which shall be the Fair Market Value per share of Series A Preferred outstanding Common Stock is on such record date and the denominator of which shall be the Fair Market Value per share of outstanding Common Stock of the Company on such record date less the then convertible. For purposes Fair Market Value of this Section 3(a)the evidences of indebtedness, a dividend period securities, cash, or property or other assets issued or distributed in such Dividend with respect to one share of Common Stock, and (ii) the Exercise Price shall be decreased (but not increased) to a Dividend Payment Date is price determined by multiplying the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment DateExercise Price then in effect by a fraction, the Issue Datenumerator of which shall be the number of shares of Common Stock subject to purchase upon exercise of this Warrant immediately before such Dividend and the denominator of which shall be the number of shares of Common Stock subject to purchase upon exercise of this Warrant immediately after such Dividend, or (b) and ending on in lieu of making such adjustment described in (A) above, upon exercise hereof the day Holder of this Warrant will be entitled to receive the per-share amount of such Dividend that such Holder would have received with respect to the number of shares of Common Stock issuable upon exercise of this Warrant immediately before payment of such Dividend; PROVIDED, that if after the date of issuance of this Warrant the Company repurchases shares of Common Stock for a per share consideration which exceeds the Fair Market Value (as calculated immediately prior to such repurchase), then the next Dividend Payment Date. Dividends payable on number of shares of Common Stock purchasable upon exercise of this Warrant and the Exercise Price shall be adjusted in accordance with the foregoing provisions, as if, in lieu of such repurchases, the Company had (I) distributed 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 having a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) Fair Market Value equal to the contraryFair Market Value of all property and cash expended in the repurchases, and without limiting any other remedy available (II) effected a reverse split of the Common Stock in the proportion required to reduce the Company or any other party, dividends shall not accrue or be payable in respect number of shares initially issued any Holder who is contractually obligated of Common Stock outstanding from (x) the number of such shares outstanding immediately before such first repurchase to appear and vote in favor (y) the number of any proposal made at a meeting of stockholders of such shares outstanding immediately following all the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendrepurchases.

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

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

Dividends. (a) Holders of shares of Series A Preferred Stock shall Vistry Shareholders will be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive and retain: • any interim dividend that is announced, which dividends shall be declared by the Board of Directors or a duly authorized committee thereofdeclared, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or made or becomes 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 by Vistry in respect of such Deferred the six-month period ended 30 June 2022; and If the Completion of the Combination occurs before the record date for any December Vistry Dividend, Countryside Shareholders will be entitled to receive and retain any December Vistry Dividend as shareholders in the Combined Group. If Completion of the Combination occurs after the record date for any December Vistry Dividend that is, on or prior to Completion, announced, declared, made, paid or becomes payable by Vistry, Countryside and Vistry have agreed that Countryside has the right to declare and pay a Countryside Equalisation 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 calculated in accordance with the foregoing paragraph and (iiEqualisation Formula described below) without any reduction to the product Combination Consideration. The Equalisation Formula is calculated per Countryside Share as the amount of (A) the aggregate dividends payable December Vistry Dividend per share Vistry Share multiplied by the Exchange Ratio. Vistry’s existing dividend policy is to pay out to a two times ordinary dividend cover in respect of Common Stock a full financial year. The typical timing for the record date for a dividend in such dividend respect of the six-month period times (B) ending 31 December, where declared, is during April each year. In respect of Countryside Shares, if, on or after the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes date of this Section 3(a)announcement and on or prior to the Effective Date, a dividend period any dividend, distribution, or other return of value is announced, declared, made, paid or becomes payable by Countryside, other than with respect to a Countryside Equalisation Dividend Payment Date that is calculated in accordance with the period commencing on Equalisation Formula, Vistry reserves the preceding Dividend Payment Date right (orwithout prejudice to any right Vistry may have, if there is no preceding Dividend Payment Datewith the consent of the Panel, to invoke Condition 3(g)(ii) in Part A of Appendix I to this announcement) to (at Vistry’s sole discretion): (i) reduce the Issue Date) and ending on the day immediately prior Combination Consideration by an amount equivalent to all or any part of such dividend, distribution, or other return of value, in which case any reference in this announcement to the next Dividend Payment Date. Dividends payable on Combination Consideration will be deemed to be 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) reference to the contrary, Combination Consideration as so reduced; or alternatively (ii) declare and without limiting any other remedy available pay an equalisation dividend to Vistry Shareholders so as to reflect the value attributable to the Company dividend, distribution, or other return of value as is announced, declared, made, paid or becomes payable by Countryside. Under the terms of the Co-operation Agreement, Vistry has undertaken not to declare, make or pay any dividend, distribution, or other party, dividends shall not accrue or be payable return of value other than as contemplated in respect of shares initially issued any Holder who is contractually obligated to appear and vote Vistry as above. Nothing in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder this announcement or the Affiliates of either) fails so Co- operation Agreement shall require Vistry to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendannounce, declare, make or pay any dividend.

Dividends. (a) Holders From and after the date of shares issuance of Series A each share of Preferred Stock Shares (the “Initial Issuance Date”), each holder of a Preferred Share (each, a “Holder” and collectively, the “Holders”) shall be entitled to cumulative receive dividends on (the Series A Preferred Stock payable semiannually“Dividends”), which dividends Dividends shall be declared paid by the Board of Directors or a duly authorized committee thereof, Company out of the assets of the Company funds legally available therefor, payable, subject to the conditions and other terms hereof, in shares of Common Stock or cash on the Stated Value (as defined below) of such Preferred Share at the Dividend Rate (as defined below), which shall be cumulative but not compounding and shall continue to accrue whether or not declared and whether or not in any fiscal year there shall be payable semiannually commencing net profits or surplus available for the payment of dividends in such fiscal year. Dividends on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share Preferred Shares shall commence accumulating on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Initial Issuance Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360365-day year consisting of twelve 30-day monthsand actual days elapsed. Commencing on and following Subject to Section 4(c), Dividends shall be payable quarterly, at the Meeting End DateHolder’s option, in the event that dividends are paid on cash or 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 first (ii1st) Dividend Date being the product date ninety (90) days from the Initial Issuance Date 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 first Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect Share to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable issued (each, a “Dividend Record Date”). If a Dividend Date is not a Business Day (as defined below), then the Dividend shall be due and payable on the Business Day immediately following such Dividend Date. Additionally, after the first Dividend Date, the Holder may request the payment of any accrued Dividends on any Conversion Date or the date of any Installment Redemption Payment (each, an “Optional Dividend Date”). (b) Dividends shall be payable on each Dividend Date, to the Holders of record of the Preferred Shares on the applicable Dividend Date, in shares of Common Stock (the “Dividend Shares”) so long as there has been no Equity Conditions Failure and so long as the delivery of Dividend Shares would not violate the provisions of Section 4(e); provided, however, that the Company may, at its option, pay Dividends on any Dividend Date in cash (the “Cash Dividends”) or in a combination of Cash Dividends and, so long as there has been no Equity Conditions Failure, Dividend Shares. The Company shall deliver a written notice (each, a “Dividend Election Notice”) to each Holder on the Dividend Notice Due Date (the date such notice is delivered to all of the Holders, the “Dividend Notice Date”), which notice (1) either (A) confirms that Dividends to be paid on such Dividend Date shall be paid entirely in Dividend Shares or (B) elects to pay Dividends as Cash Dividends, Dividend Shares, or as a combination of Dividend Shares and Cash Dividends and, in any event, specifies the amount of Dividends that shall be paid as Cash Dividends and the amount of Dividends, if any, that shall be paid in Dividend Shares and (2) certifies that there has been no Equity Conditions Failure as of such time, if any portion of the Dividends shall be paid in Dividend Shares. Notwithstanding anything in this Section 3(a) herein to the contrary, if no Equity Conditions Failure has occurred as of the Dividend Notice Date but an Equity Conditions Failure occurs at any time prior to the Dividend Date, (A) the Company shall provide each Holder a subsequent notice to that effect and without limiting (B) unless such Holder waives the Equity Conditions Failure, the Dividend payable to such Holder on such Dividend Date shall be paid as Cash Dividends to be paid to each Holder on a Dividend Date in Dividend Shares shall be paid in a number of fully paid and non-assessable shares (rounded to the nearest whole share, with 0.50 or more of a share being rounded up to the nearest whole share and 0.49 or less of a share being rounded down to the nearest whole share) of Common Stock equal to the quotient of (1) the amount of Dividends payable to such Holder on such Dividend Date less any other remedy available Cash Dividends paid and (2) the Conversion Price in effect on the applicable Dividend Date. (c) When any Dividend Shares are to be paid on an Dividend Date to any Holder, the Company shall (i) (A) provided that (x) the Company’s transfer agent (the “Transfer Agent”) is participating in the Depository Trust Company (“DTC”) Fast Automated Securities Transfer Program and (y) such Dividend Shares to be so issued are eligible for resale pursuant to Rule 144 (as defined in the Securities Purchase Agreement), credit such aggregate number of Dividend Shares to which such Holder shall be entitled to such Holder’s or its designee’s balance account with DTC through its Deposit and Withdrawal at Custodian system, or (B) if either of the immediately preceding clauses (x) or (y) is not satisfied, 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 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 Dividend Date, a certificate, registered in the name of such Holder or its designee, for the number of Dividend Shares to which such Holder shall be entitled and (ii) with respect to each Dividend Date, pay to such Holder, in cash by wire transfer of immediately available funds, the amount of any other partyCash Dividend. The Company shall pay any and all taxes that may be payable with respect to the issuance and delivery of Dividend Shares. (d) In the event that a Holder requests the payment of Dividends on any Optional Dividend Date, dividends such Dividends shall not accrue or be payable in respect accordance with mechanisms set forth in Sections 4(c)(i)-(ii) and Section 5(b), as applicable. The Dividends shall be paid, at the Holder’s option in cash, in Dividend Shares, or any combination of shares initially issued any Holder who is contractually obligated cash and Dividend Shares, so long as there has been no Equity Conditions Failure and so long as the delivery of Dividend Shares would not violate the provisions of Section 4(e). Dividends to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order be paid to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder on an Optional Dividend Date in Dividend Shares shall be paid in a number of fully paid and non-assessable shares (or such transferor Holder or rounded to the Affiliates nearest whole share) of eitherCommon Stock equal to the quotient of (1) fails so to appear and vote in favor. Any shares issued the amount of Dividends payable to such Holders shall bear Holder on such Optional Dividend Date less any Dividends paid in cash and (2) the Stockholder Approval LegendConversion Price in effect on the applicable Optional Dividend Date.

Dividends. (a) Subject to the provisions of subsection 8(a), Holders of shares of Series A Preferred Stock shall will be entitled to receive, when and as authorized by the Board and declared by the Corporation, out of funds legally available for payment, cumulative cash dividends as follows: (i) for the Dividend Period from the original issuance date of the Series A Preferred Stock through the Dividend Record Date next following the original issuance date (the “First Dividend Record Date”), an amount equal to 5% per annum of the Liquidation Preference; (ii) for the Dividend Period commencing on the day after the First Dividend Record Date through the next succeeding Dividend Record Date, an amount equal to the greater of (A) 5% per annum of the Liquidation Preference or (B) the Common Stock dividend declared for such Dividend Period; (iii) for each succeeding Dividend Period after the Dividend Period referred to in clause (ii), an amount equal to the greater of (A) 5% per annum of the Liquidation Preference, or (B) the Common Stock dividend declared for such Dividend Period. (b) Dividends on the Series A Preferred Stock, as provided for in subsection 3(a) shall be cumulative from the original issuance date, whether or not the Corporation has earnings, whether or not the Corporation has legally available funds, or whether or not declared by the Board or authorized or paid by the Corporation. However, no cash dividend shall be payable (but nevertheless shall continue to accrue) before the earlier to occur of a Conversion Vote or March 31, 2008. Any dividend payable on the Series A Preferred Stock for any partial Dividend Period will be computed on the basis of twelve 30-day months and a 360-day year. Dividends will be payable in arrears to holders of record as they appear on the records of the Corporation at the close of business on the applicable Dividend Record Date. No interest will be paid in respect of any dividend payment or payments on the Series A Preferred Stock that may be in arrears, nor shall additional dividends be declared or paid in respect of unpaid dividends. (c) Except for the payment of the First Dividend which in no event shall exceed $ 0.50 per share of Common Stock (as adjusted for any stock splits, stock combinations or similar transaction), unless full cumulative dividends on the Series A Preferred Stock payable semiannuallyhave been paid or declared and set apart for payment for all past Dividend Periods, which no dividends shall be declared by or paid or set apart for payment with respect to any Junior Stock, nor shall any Junior Stock be redeemed, purchased or otherwise acquired (except for purposes of an employee benefit plan) for any consideration, or any monies be paid to or made available for a sinking fund for the Board redemption of Directors any Junior Stock, nor shall any other cash or a duly authorized committee thereof, out property be paid or distributed to or for the benefit of holders of Junior Stock. Notwithstanding the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Dateforegoing, 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”) Corporation 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 declaringredeeming, 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 purchasing or otherwise acquiring an amount of dividends payable for any other period that is shorter Junior Stock 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 if such redemption, purchase or other acquisition is in the opinion of outside counsel to the Corporation necessary to maintain the Corporation’s qualification as a real estate investment trust for federal income tax purposes (“REIT”); provided that prior to such redemption, purchase or acquisition of any Junior Stock, then a dividend the Corporation shall be payable in respect of first offer to each share holder of Series A Preferred Stock for (on a pro rata basis based on the number of shares of Series A Preferred Stock owned by such period in holder relative to all of the outstanding shares of Preferred Stock) the opportunity to elect to have its, his or her Series A Preferred Stock redeemed at an amount equal to the greater Redemption Price (as defined in subsection 6(a)) computed as of the date the Redemption Price is paid. (id) If, for any taxable year, the Corporation elects to designate as “capital gain dividends” (as defined in Section 857 of the Internal Revenue Code) any portion of the dividends (as determined for federal income tax purposes) paid or made available for the year to holders of all classes of capital stock, then the portion of the capital gains amount otherwise payable in respect of such share that shall be allocable to the holders of Series A Preferred Stock in accordance with shall be the foregoing paragraph and amount that the total dividends (iias determined for federal income tax purposes) paid or made available to the product holders 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 for the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior year bears to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable total dividends (as determined for federal income tax purposes) paid or made available for the year to Holders holders of record on the close all classes of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendcapital stock.

Dividends. (a) Holders of shares Each Holder of Series A Preferred Stock shall be entitled to cumulative receive, when, as and if declared by the Board of Directors, out of funds legally available therefor, cash dividends on each share of Series A Preferred Stock at a rate equal to $1.30 per share per annum. All dividends shall be cumulative, whether or not earned or declared, and shall accrue on a daily basis from the date of issuance of Series A Preferred Stock, and shall be payable 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 (as provided in Paragraph A4(a) below) at the time of repurchase as provided herein if not earlier declared and paid. Accrued dividends on the Series A Preferred Stock payable semiannuallyif 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 a duly authorized committee thereof, out paid or funds set apart for the payment of the assets of the Company legally available therefordividends or other distributions on any Series A Parity Securities for any period, and shall 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 semiannually commencing in Series A Junior Securities and cash in lieu of fractional shares 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 180th day following Series A Preferred Stock and Series A Parity Securities for all Dividend Periods terminating on or prior to the Issue Date date of payment of such dividends or distributions on, or such repurchase or redemption of, such Series A Parity Securities (or the following Business Day if "Series A Parity Payment Date") and (ii) any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at dividends are declared and paid pro rata so that the rate per annum amounts of 6% 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 Liquidation Preference; 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 thatfor 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, in the event whether or not earned or declared, so that if at any time full Accumulated Dividends on any all shares of Series A Preferred Stock then outstanding for all Dividend Payment DatePeriods then elapsed have not been paid or set aside for payment, the Company is not permitted amount of such unpaid dividends shall be paid before any sum shall be set aside for or applied by the Corporation to declare the purchase, redemption or pay such other acquisition for value of any shares of Series A Junior Securities (either pursuant to any applicable sinking fund requirement or otherwise) or any dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) other distribution shall not be declared by the Board of Directors, shall not be paid or payable declared or set apart for payment on any Series A Junior Securities (the date of any such Dividend actions to be referred to as the "Series A Junior Payment Date Date"); provided, however, that the foregoing shall not (i) prohibit the Corporation from repurchasing shares of Series A Junior Securities from a holder thereof who is, or was, a director or employee of the Corporation (or an affiliate of the Corporation) and no liability shall be incurred in respect thereof(ii) prohibit the Corporation from making dividends, and insteadother distributions, such Deferred Dividend shall be declaredredemptions, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability repurchases or acquisitions in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be Series A Junior Securities payable in addition to, Series A Junior Securities and not cash in lieu of, any dividend which would ordinarily be of fractional shares of such Series A Junior Securities in connection therewith. (f) Dividends payable on such succeeding Dividend Payment Date). The amount of dividends payable Series A Preferred Stock for any other period that is shorter or longer less than a full semiannual dividend period will one year shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on months and following the Meeting End Date, actual number of days elapsed in the event that period for which such dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendpayable.

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