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This excerpt taken from the C 10-Q filed Nov 6, 2009. (c)
Priority of Dividends. So
long as any share of Series AA Preferred Stock remains outstanding, unless
as to a Dividend Payment Date full dividends on all outstanding shares of the Series AA
Preferred Stock have been declared and paid or declared and a sum sufficient
for the payment of those dividends has been set aside for the Dividend Period
then ending, the Company will not, and will cause its subsidiaries not to,
during the next succeeding Dividend Period that commences on such Dividend
Payment Date, declare or pay any dividend on, make any distributions relating
to, or redeem, purchase, acquire or make a liquidation payment relating to, any
Junior Stock, or make any guarantee payment with respect thereto, other than:
Exhibit I - 3
(i) purchases, redemptions or other acquisitions of shares of Junior Stock in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of employees, officers, directors or consultants;
(ii) purchases of shares of Common Stock pursuant to a contractually binding requirement to buy stock existing prior to the commencement of the then-current dividend period, including under a contractually binding stock repurchase plan;
(iii) as a result of an exchange or conversion of any class or series of Junior Stock for any other class or series of Junior Stock;
(iv) the purchase of fractional interests in shares of Junior Stock pursuant to the conversion or exchange provisions of such Junior Stock or the security being converted or exchanged;
(v) the purchase of Junior Stock by an investment banking subsidiary of the Company in connection with the distribution thereof; or
(vi) the purchase of Junior Stock by any investment banking subsidiary of the Company in connection with market-making or other secondary market activities in the ordinary course of the business of such subsidiary.
The foregoing restriction, however, will not apply to any Junior Stock dividends paid by the Company where the dividend stock is the same stock as that on which the dividend is being paid.
Except as provided below, for so long as any share of Series AA Preferred Stock remains outstanding, if dividends are not declared and paid in full upon the shares of Series AA Preferred Stock and any Parity Stock, all dividends declared upon shares of Series AA Preferred Stock and any Parity Stock will be declared on a proportional basis so that the amount of dividends declared per share will bear to each other the same ratio that accrued dividends for the then-current Dividend Period per share of Series AA Preferred Stock and accrued dividends for the then-current Dividend Period per share of any Parity Stock (including, in the case of any such Parity Stock that bears cumulative dividends, all accrued and unpaid dividends) bear to each other.
Subject to the foregoing, and not otherwise, such dividends payable in cash, stock or otherwise, as may be determined by the Board of Directors, the Preferred Stock Committee or any other duly authorized committee thereof, may be declared and paid on any Junior Stock and Parity Stock from time to time out of any assets legally available for such payment, and Holders will not be entitled to participate in those dividends.
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