DATE, THEN SUCH UNPAID DIVIDENDS
SHALL NOT CUMULATE AND SHALL CEASE TO ACCRUE AND BE PAYABLE AND THE COMPANY
SHALL HAVE NO OBLIGATION TO PAY, AND THE HOLDERS SHALL HAVE NO RIGHT TO RECEIVE,
DIVIDENDS ACCRUED FOR THE DIVIDEND PERIOD ENDING IMMEDIATELY PRIOR TO SUCH
DIVIDEND PAYMENT DATE AFTER SUCH DIVIDEND PAYMENT DATE, WHETHER OR NOT DIVIDENDS
ARE DECLARED FOR ANY SUBSEQUENT DIVIDEND PERIOD WITH RESPECT TO SERIES A
PREFERRED STOCK, PARITY SECURITIES, JUNIOR SECURITIES OR ANY OTHER CLASS OR
SERIES OF CAPITAL STOCK OR AUTHORIZED PREFERRED STOCK OF THE COMPANY.
HOLDERS
SHALL NOT BE ENTITLED TO ANY DIVIDENDS, WHETHER PAYABLE IN CASH, PROPERTY OR
STOCK, IN EXCESS OF FULL DIVIDENDS FOR EACH DIVIDEND PERIOD 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 FAILURE TO MAKE ANY DIVIDEND
PAYMENT.
(C)
EACH DIVIDEND WILL BE PAYABLE TO HOLDERS OF RECORD AS THEY APPEAR
IN THE RECORDS OF THE COMPANY AT THE CLOSE OF BUSINESS ON THE JANUARY 31,
APRIL 30, JULY 31 AND OCTOBER 31 IMMEDIATELY PRECEDING THE CORRESPONDING
DIVIDEND PAYMENT DATE.
SECTION 5.
PAYMENT RESTRICTIONS.
DURING ANY TIME THAT ANY SHARES
OF SERIES A PREFERRED STOCK ARE OUTSTANDING, THE COMPANY SHALL NOT (I) DECLARE
OR PAY DIVIDENDS ON, MAKE DISTRIBUTIONS WITH RESPECT TO, OR REDEEM, PURCHASE OR
ACQUIRE, OR MAKE A LIQUIDATION PAYMENT WITH RESPECT TO, OR PAY OR MAKE AVAILABLE
MONIES FOR THE REDEMPTION OF, ANY COMMON STOCK OR OTHER JUNIOR SECURITIES, OR
(II) REDEEM, PURCHASE OR ACQUIRE, OR MAKE A LIQUIDATION PAYMENT WITH RESPECT TO,
OR PAY OR MAKE AVAILABLE MONIES FOR THE REDEMPTION OF, ANY PARITY SECURITIES
(OTHERWISE THAN PURSUANT TO PRO RATA OFFERS TO PURCHASE ALL OR ANY PRO RATA
PORTION OF SUCH PARITY SECURITIES AND THE SERIES A PREFERRED STOCK), UNLESS IN
EACH CASE FULL DIVIDENDS ON ALL OUTSTANDING SHARES OF THE
A-6
SERIES A PREFERRED STOCK HAVE BEEN PAID OR (IN THE CASE OF CURRENT DIVIDENDS)
DECLARED AND SET ASIDE FOR PAYMENT (EXCEPT FOR (W) DIVIDENDS OR DISTRIBUTIONS
PAID IN SHARES OF, OR OPTIONS, WARRANTS OR RIGHTS TO SUBSCRIBE FOR OR PURCHASE
SHARES OF, COMMON STOCK OR OTHER JUNIOR SECURITIES, (X) REDEMPTIONS OR PURCHASES
BY CONVERSION OR EXCHANGE OF JUNIOR SECURITIES FOR OR INTO OTHER JUNIOR
SECURITIES, OR OF PARITY SECURITIES FOR OR INTO OTHER PARITY SECURITIES OR
JUNIOR SECURITIES, (Y) PURCHASES BY THE COMPANY OR ITS AFFILIATES AS A BROKER,
DEALER, ADVISOR, FIDUCIARY, TRUSTEE OR COMPARABLE CAPACITY IN CONNECTION WITH
TRANSACTIONS EFFECTED BY OR FOR THE ACCOUNT OF CUSTOMERS OF THE COMPANY OR
CUSTOMERS OF ANY OF ITS SUBSIDIARIES OR IN CONNECTION WITH THE DISTRIBUTION OR
TRADING OF SUCH CAPITAL STOCK AND (Z) ACQUISITIONS OF SHARES OF COMMON STOCK IN
RESPECT OF EXERCISES OF EMPLOYEE EQUITY AWARDS OR ANY RELATED TAX WITHHOLDING).
WHEN DIVIDENDS ARE NOT PAID IN FULL (OR DECLARED AND A SUM SUFFICIENT FOR SUCH
FULL PAYMENT IS NOT SO SET APART) FOR ANY DIVIDEND PERIOD ON THE SERIES A
PREFERRED STOCK