controlled Affiliates, to vote, express consent or dissent, or otherwise to
utilize such voting power in the manner and solely on the terms provided by this
Section 5.6 with respect to the Underlying Common Shares and the Warrant Shares
and the Investor hereby revokes any and all previous proxies granted with
respect to the Underlying Common Shares and the Warrant Shares for purposes of
the matters contemplated in this Section 5.6; provided that such proxy may only
be exercised if the Investor fails to comply with the terms of this Section 5.6.
The proxy granted hereby is irrevocable prior to the termination of this
Agreement, is coupled with an interest and is granted in consideration of the
Company entering into this Agreement and issuing the Capital Securities and
Amended Warrant to the Investor.
-14-
(b)
The Investor shall retain the right to vote in its sole discretion
all Underlying Common Shares and Warrant Shares beneficially owned by it and its
controlled Affiliates (and which are entitled to vote on such matter) on any
Designated Matter.
SECTION 5.7
RESTRICTION ON DIVIDENDS AND REPURCHASES.
(A)
UNTIL THE EARLIER OF (I) DECEMBER 12, 2011 OR (II) SUCH TIME AS THE
INVESTOR CEASES TO OWN ANY DEBT OR EQUITY SECURITIES OF THE COMPANY OR AN
AFFILIATE OF THE COMPANY ACQUIRED PURSUANT TO THIS AGREEMENT OR THE AMENDED
WARRANT, NEITHER THE COMPANY NOR ANY COMPANY SUBSIDIARY SHALL, WITHOUT THE
CONSENT OF THE INVESTOR:
(I)
DECLARE OR PAY ANY DIVIDEND OR MAKE ANY DISTRIBUTION ON THE COMMON
STOCK (OTHER THAN (A) REGULAR QUARTERLY CASH DIVIDENDS OF NOT MORE THAN THE
AMOUNT OF THE LAST QUARTERLY CASH DIVIDEND PER SHARE DECLARED OR, IF LOWER,
PUBLICLY ANNOUNCED AN INTENTION TO DECLARE, ON THE COMMON STOCK PRIOR TO
OCTOBER 14, 2008, AS ADJUSTED FOR ANY STOCK SPLIT, STOCK DIVIDEND, REVERSE STOCK
SPLIT, RECLASSIFICATION OR SIMILAR TRANSACTION, (B) DIVIDENDS PAYABLE SOLELY IN
SHARES OF COMMON STOCK AND (C) DIVIDENDS OR DISTRIBUTIONS OF RIGHTS OR JUNIOR
STOCK IN CONNECTION WITH A STOCKHOLDERS' RIGHTS PLAN); OR
(II)
REDEEM, PURCHASE OR ACQUIRE ANY SHARES OF COMMON STOCK OR OTHER
CAPITAL STOCK OR OTHER EQUITY SECURITIES OF ANY KIND OF THE COMPANY, OR ANY
TRUST PREFERRED SECURITIES ISSUED BY THE COMPANY OR ANY AFFILIATE OF THE
COMPANY, OTHER THAN (A) REDEMPTIONS, PURCHASES OR OTHER ACQUISITIONS OF THE
CAPITAL SECURITIES (WHICH PURCHASES SHALL BE MADE ON A PRO RATA BASIS, AS
PROVIDED IN SECTION 5.6(B)), (B) REDEMPTIONS, PURCHASES OR OTHER ACQUISITIONS OF
SHARES OF COMMON STOCK OR OTHER JUNIOR STOCK, IN EACH CASE IN THIS CLAUSE (B) IN
CONNECTION WITH THE ADMINISTRATION OF ANY EMPLOYEE BENEFIT PLAN IN THE ORDINARY
COURSE OF BUSINESS (INCLUDING PURCHASES TO OFFSET THE SHARE DILUTION AMOUNT (AS
DEFINED BELOW) PURSUANT TO A PUBLICLY ANNOUNCED REPURCHASE PLAN) AND CONSISTENT
WITH PAST PRACTICE; PROVIDED THAT ANY PURCHASES TO OFFSET THE SHARE DILUTION
AMOUNT SHALL IN NO EVENT EXCEED THE SHARE DILUTION AMOUNT, (C) PURCHASES OR
OTHER ACQUISITIONS BY A BROKER-DEALER SUBSIDIARY OF THE COMPANY SOLELY FOR THE
PURPOSE OF MARKET-MAKING, STABILIZATION