Common use of Special Dividend Clause in Contracts

Special Dividend. (a) On a single occasion after January 1, 2022, upon any Stockholder’s written request (delivered to the Company and each other Stockholder), the Company will take all actions reasonably necessary to pay a one-time dividend on the Preferred Stock (the “Special Dividend”) equal to the highest dividend that the Board determines can be paid at that time subject to the limitations imposed under Delaware law and this Section 3.5, unless within five (5) business days after notification by the Company to the Stockholders of the amount of the highest dividend that can be paid at that time (which dividend shall not be declared or paid during such five (5) business day period), the Stockholders unanimously agree to the payment of a Special Dividend in a lower amount in a writing delivered to the Company. If the Board, pursuant to this Section, determines that the highest amount of Special Dividend that can be paid at such time is less than $50,000,000, then, unless the Stockholders unanimously agree to the payment of a Special Dividend of less than $50,000,000 in a writing delivered to the Company, no Special Dividend shall be declared or paid and the right to request the payment of the Special Dividend pursuant to the first sentence of this Section 3.5(a) shall remain unused and shall remain available. In connection with the foregoing, the Company shall (i) to the extent required based on the Company’s financial condition, reasonably promptly seek and obtain financing Indebtedness (the “Debt Financing”) to effectuate such Special Dividend and (ii) declare and pay such Special Dividend, which, if the Debt Financing is required, shall be paid substantially contemporaneous with, or reasonably promptly after, the consummation of such Debt Financing; provided that (A) the Company shall not, and shall not be required to, incur any such Debt Financing in an amount that would cause the Company’s Leverage Ratio to be more than 3.00:1.00, determined on a Pro Forma Basis after giving effect to the incurrence of such Debt Financing and the payment of such Special Dividend, and (B) such Debt Financing shall (1) reflect financing and other terms consistent with leveraged finance market practice for non-distressed transactions of this type, taking into account the Company’s LTM Adjusted EBITDA at such time and pro forma total leverage ratio and secured leverage ratio for the transaction and other attributes of the Company as compared to other similarly situated borrowers incurring similar amounts of Indebtedness at such time (provided that the Company shall not agree in the definitive agreement of such Debt Financing to any restrictions on the payment of cash dividends and/or distributions in respect of the Preferred Stock, subject to conditions no more restrictive to the borrower thereunder than the absence of any continuing “event of default” (or similar term used in the definitive documentation for the Debt Financing)), (2) be obtained without any equity or equity-linked features, and (3) have a maturity date of at least three years after the incurrence of such Debt Financing; provided, further, that to the extent that the restrictions in clause (A) of the foregoing proviso would not permit the declaration and payment in full of the maximum amount of the Special Dividend requested by the Stockholder, the Special Dividend shall, to the extent it is at least $50,000,000, nonetheless be effectuated to the maximum amount permitted by clause (A). Notwithstanding the foregoing, if $100,000,000 of Special Dividends and Annual Dividends (as defined in the Certificate of Designations), in aggregate, have been paid on the Preferred Stock, the Company will use any remaining amount of the Special Dividend requested by the Stockholder to pay a pro rata dividend (the “Pro Rata Dividend”) on the Common Stock (with the Preferred Stock participating on an as-converted basis in accordance with Section 4(f) of the Certificate of Designation). For the avoidance of doubt, the Company shall only be obligated to pay a Special Dividend pursuant to this Section 3.5 one time, subject to the second sentence of this Section 3.5(a). If any of the Stockholders requests the payment of a Special Dividend pursuant to this Section 3.5, and such Special Dividend is paid, thereafter, no Stockholder shall be entitled to any further rights pursuant to this Section 3.5, subject to the second sentence of this Section 3.5(a).

Appears in 3 contracts

Samples: Registration Rights Agreement (Comscore, Inc.), Registration Rights Agreement (Comscore, Inc.), Registration Rights Agreement (Comscore, Inc.)

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Special Dividend. (a) On a single occasion after January 1, 2022, upon any Stockholder’s written request (delivered to the Company and each other Stockholder), the Company will take all actions reasonably necessary to pay a one-time dividend on the Preferred Stock (the “Special Dividend”) equal to the highest dividend that the Board determines can be paid at that time subject to the limitations imposed under Delaware law and this Section 3.5, unless within five (5) business days after notification by the Company to the Stockholders of the amount of the highest dividend that can be paid at that time (which dividend shall not be declared or paid during such five (5) business day period), the Stockholders unanimously agree to the payment of a Special Dividend in a lower amount in a writing delivered to the Company. If the Board, pursuant to this SectionSection 3.5, determines that the highest amount of Special Dividend that can be paid at such time is less than $50,000,000, then, unless the Stockholders unanimously agree to the payment of a Special Dividend of less than $50,000,000 in a writing delivered to the Company, no Special Dividend shall be declared or paid and the right to request the payment of the Special Dividend pursuant to the first sentence of this Section 3.5(a) shall remain unused and shall remain available. In connection with the foregoing, the Company shall (i) to the extent required based on the Company’s financial condition, reasonably promptly seek and obtain financing Indebtedness (the “Debt Financing”) to effectuate such Special Dividend and (ii) declare and pay such Special Dividend, which, if the Debt Financing is required, shall be paid substantially contemporaneous with, or reasonably promptly after, the consummation of such Debt Financing; provided that (A) the Company shall not, and shall not be required to, incur any such Debt Financing in an amount that would cause the Company’s Leverage Ratio to be more than 3.00:1.00, determined on a Pro Forma Basis after giving effect to the incurrence of such Debt Financing and the payment of such Special Dividend, and (B) such Debt Financing shall (1) reflect financing and other terms consistent with leveraged finance market practice for non-distressed transactions of this type, taking into account the Company’s LTM Adjusted EBITDA at such time and pro forma total leverage ratio and secured leverage ratio for the transaction and other attributes of the Company as compared to other similarly situated borrowers incurring similar amounts of Indebtedness at such time (provided that the Company shall not agree in the definitive agreement of such Debt Financing to any restrictions on the payment of cash dividends and/or distributions in respect of the Preferred Stock, subject to conditions no more restrictive to the borrower thereunder than the absence of any continuing “event of default” (or similar term used in the definitive documentation for the Debt Financing)), (2) be obtained without any equity or equity-linked features, and (3) have a maturity date of at least three years after the incurrence of such Debt Financing; provided, further, that to the extent that the restrictions in clause (A) of the foregoing proviso would not permit the declaration and payment in full of the maximum amount of the Special Dividend requested by the Stockholder, the Special Dividend shall, to the extent it is at least $50,000,000, nonetheless be effectuated to the maximum amount permitted by clause (A). Notwithstanding the foregoing, if $100,000,000 of Special Dividends and Annual Dividends (as defined in the Certificate of Designations), in aggregate, have been paid on the Preferred Stock, the Company will use any remaining amount of the Special Dividend requested by the Stockholder to pay a pro rata dividend (the “Pro Rata Dividend”) on the Common Stock (with the Preferred Stock participating on an as-converted basis in accordance with Section 4(f) of the Certificate of DesignationDesignations). For the avoidance of doubt, the Company shall only be obligated to pay a Special Dividend pursuant to this Section 3.5 one time, subject to the second sentence of this Section 3.5(a). If any of the Stockholders requests the payment of a Special Dividend pursuant to this Section 3.5, and such Special Dividend is paid, thereafter, no Stockholder shall be entitled to any further rights pursuant to this Section 3.5, subject to the second sentence of this Section 3.5(a).

Appears in 1 contract

Samples: Stockholders Agreement (Comscore, Inc.)

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Special Dividend. (a) On a single occasion after January 1For purposes of this Agreement, 2022the “Special Dividend” means the amount of $0.50 in cash per share of Company Common Stock, upon any Stockholder’s written request (delivered as it may be adjusted pursuant to this Section 5.12, without interest. No earlier than 10 Business Days prior to the Company and each other Stockholdercontemplated Closing Date (as determined by the parties pursuant to Section 1.3), the Company will take shall deliver to Parent an accurate and complete, in all actions reasonably necessary to pay a one-time dividend on material respects, itemized estimate of, without duplication, (i) all fees, costs and expenses of brokers, finders, investment bankers, attorneys, accountants and other consultants and advisors (including the Preferred Stock (the “Special Dividend”) equal to the highest dividend that the Board determines can be paid at that time subject to the limitations imposed under Delaware law fees and this commissions contemplated in Section 3.5, unless within five (5) business days after notification by the Company to the Stockholders of the amount of the highest dividend that can be paid at that time (which dividend shall not be declared or paid during such five (5) business day period), the Stockholders unanimously agree to the payment of a Special Dividend 2.25 and in a lower amount in a writing delivered to the Company. If the Board, pursuant to this Section, determines that the highest amount of Special Dividend that can be paid at such time is less than $50,000,000, then, unless the Stockholders unanimously agree to the payment of a Special Dividend of less than $50,000,000 in a writing delivered to the Company, no Special Dividend shall be declared or paid and the right to request the payment of the Special Dividend pursuant to the first sentence of this Section 3.5(a) shall remain unused and shall remain available. In connection with the foregoing, arrangements contemplated by the Company shall following clause (iii) to the extent required based on the Company’s financial condition, reasonably promptly seek and obtain financing Indebtedness (the “Debt Financing”of this sentence) to effectuate such Special Dividend and (ii) declare all sale, change-of-control, “stay-around,” retention or similar bonuses or payments to any Company Associates or other Persons, in each case that have been paid or will become payable or have otherwise been incurred by or on behalf of the Acquired Companies as a result of or in connection with the preparation, negotiation, execution, delivery and pay such Special Dividend, which, if the Debt Financing is required, shall be paid substantially contemporaneous with, or reasonably promptly after, performance of this Agreement and the consummation of such Debt Financing; provided that the Contemplated Transactions (Acollectively, the “Transaction Expenses”) the Company shall not, and shall not be required to, incur any such Debt Financing in an amount that would cause the Company’s Leverage Ratio to be more than 3.00:1.00, determined on a Pro Forma Basis after giving effect to the incurrence of such Debt Financing and the payment of such Special Dividend, and (B) such Debt Financing shall (1) reflect financing and other terms consistent with leveraged finance market practice for non-distressed transactions of this type, taking into account the Company’s LTM Adjusted EBITDA at such time and pro forma total leverage ratio and secured leverage ratio for the transaction and other attributes as of the Company as compared to other similarly situated borrowers incurring similar amounts of Indebtedness at such time (provided that the Company shall not agree in the definitive agreement of such Debt Financing to any restrictions on the payment of cash dividends and/or distributions in respect of the Preferred Stock, subject to conditions no more restrictive to the borrower thereunder than the absence of any continuing “event of default” (or similar term used in the definitive documentation for the Debt Financing)), (2) be obtained without any equity or equity-linked features, and (3) have a maturity date of at least three years after the incurrence of such Debt Financing; provided, further, that to the extent that the restrictions in clause (A) of the foregoing proviso would not permit the declaration and payment in full of the maximum amount of the Special Dividend requested by the Stockholder, the Special Dividend shall, to the extent it is at least $50,000,000, nonetheless be effectuated to the maximum amount permitted by clause (A). Notwithstanding the foregoing, if $100,000,000 of Special Dividends and Annual Dividends (as defined in the Certificate of Designations), in aggregate, have been paid on the Preferred Stock, the Company will use any remaining amount of the Special Dividend requested by the Stockholder to pay a pro rata dividend (the “Pro Rata Dividend”) on the Common Stock (with the Preferred Stock participating on an as-converted basis in accordance with Section 4(f) of the Certificate of Designation)contemplated Closing Date. For the avoidance of doubt, the Transaction Expenses shall not include (w) any fees, costs, expenses or payments to the extent incurred by or at the direction of Parent or Merger Sub after the date hereof, (x) any filing fees or other similar fees, costs or expenses, including filing fees payable in connection with the filing of the Proxy Statement with the SEC, (y) any fees, costs and expenses for preparing and mailing the Proxy Statement, convening the Company shall only be obligated to pay a Stockholders Meeting or any adjournment thereof or solicitation of proxies from the Company’s stockholders (other than, in the case of this clause “(y)”, any fees, costs or expenses of the professionals specified in clause “(i)” of this Section 5.12) or (z) the cost of the “tail” insurance policy contemplated in Section 5.4(c). To the extent that the aggregate Transaction Expenses in such list exceed $3,050,000, the aggregate amount of the Special Dividend pursuant shall be decreased by the amount of such excess, and the per-share amount of the Special Dividend shall be adjusted accordingly pro rata. Following such determination of the amount of the Special Dividend and prior to this Section 3.5 one timethe Closing, subject to applicable Law, the second sentence Company’s board of directors shall declare a cash dividend, the record date for which shall be the close of business on the last Business Day prior to the day on which the Effective Time occurs (the “Special Dividend Record Date”) and the payment date for which shall be three Business Days after the Effective Time (the “Special Dividend Payment Date”), in the amount of the Special Dividend payable to holders of record of issued and outstanding shares of Company Common Stock; provided that payment of the Special Dividend shall be contingent on the consummation of the Merger. Following determination of the amount of the Special Dividend in accordance with this Section 3.5(a). If any 5.12, the Company shall have the right, but not the obligation, to deposit funds equal to the aggregate amount of the Stockholders requests the payment of a Special Dividend with a paying agent selected by the Company and that is reasonably acceptable to Parent (and subject to a paying agent agreement in form and substance reasonably acceptable to Parent) to be held in trust for the holders of record of issued and outstanding shares of Company Common Stock on the Special Dividend Record Date. Parent shall cause the Surviving Corporation (or the paying agent with which the Company deposited funds in trust pursuant to this Section 3.5the immediately preceding sentence) to pay, or for Special Dividends with respect to which there is a Tax withholding obligation, shall cause to be paid through Parent’s or the Surviving Corporation’s standard payroll practices, if applicable, and such less any applicable withholding for Taxes, the Special Dividend is paid, thereafter, no Stockholder shall be entitled to any further rights pursuant to this Section 3.5, subject to on the second sentence of this Section 3.5(a)Special Dividend Payment Date.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Ecology & Environment Inc)

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