Company Shares If the managing underwriter has not limited the number of Registrable Securities to be underwritten, the Company may include securities for its own account or for the account of others in such registration if the managing underwriter so agrees and if the number of Registrable Securities which would otherwise have been included in such registration and underwriting will not thereby be limited.
Founder Shares On July 30, 2021, the Company issued to AIB LLC (the “Sponsor”) 1,437,500 of the Company’s Class B ordinary shares, par value $0.0001 per share (the “Founder Shares”), for an aggregate consideration of $25,000, with economic effect as of June 30, 2021. On September 13, 2021, the Company effected a share dividend of 0.5 shares for each Class B ordinary share outstanding, resulting in an aggregate of 2,156,250 Founder Shares outstanding. No underwriting discounts, commissions, or placement fees have been or will be payable in connection with the purchase of Founder Shares. Except as described in the Registration Statement, none of the Founder Shares may be sold, assigned or transferred by the Initial Shareholders until the earlier of: (i) six months following the consummation of the Business Combination; (ii) subsequent to the consummation of a Business Combination, when the closing price of the Ordinary Shares equals or exceeds $12.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) for any 20 trading days within a 30-trading day period commencing within any 150-trading day period after the consummation of the Business Combination; or (iii) the date on which the Company completes a liquidation, merger, stock exchange or other similar transaction after the initial Business Combination, that results in all of the Company’s stockholders having the right to exchange their Ordinary Shares for cash, securities or other property. The Founder Shares shall be subject to restrictions on transfer as set forth in the Insider Letters (as defined in Section 2.21.1 herein). The holders of Founder Shares shall have no right to any liquidating distributions with respect to any portion of the Founder Shares in the event the Company fails to consummate a Business Combination. The holders of the Founder Shares shall not have redemption rights with respect to the Founder Shares. In the event that the Over-allotment Option is not exercised in full, the Sponsor will be required to forfeit such number of Founder Shares (up to 281,250 Founder Shares) such that the Founder Shares then outstanding will comprise 20% of the issued and outstanding shares of the Company (but not including any Placement Shares (as defined below)) after giving effect to the Offering and exercise, if any, of the Over-allotment Option.
Company Securities Except as set forth in this Section 3.7, there are (i) no outstanding shares of capital stock of, or other equity or voting interest in (including voting debt), the Company; (ii) no outstanding securities of the Company or any of its Subsidiaries convertible into or exchangeable or exercisable for shares of capital stock of, or other equity or voting interest (including voting debt) in, the Company; (iii) no outstanding options, warrants or other rights or binding arrangements to acquire from the Company or any of its Subsidiaries, or that obligate the Company or any of its Subsidiaries to issue or sell, any capital stock of, or other equity or voting interest in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interest (including voting debt) in, the Company; (iv) no obligations of the Company or any of its Subsidiaries to grant, extend or enter into any subscription, warrant, right, convertible, exchangeable or exercisable security, or other similar Contract relating to any capital stock of, or other equity or voting interest (including any voting debt) in, the Company; (v) no outstanding shares of restricted stock, restricted stock units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other securities or ownership interests in, the Company (the items in clauses (i), (ii), (iii), (iv) and (v), collectively with the Company Common Stock, the “Company Securities”); (vi) no voting trusts, proxies or similar arrangements or understandings to which the Company or any of its Subsidiaries is a party or by which the Company is bound with respect to the voting of any shares of capital stock of, or other equity or voting interest in, the Company; (vii) except as provided in the Charter or the Bylaws, no obligations or binding commitments of any character restricting the transfer of any shares of capital stock of, or other equity or voting interest in, the Company to which the Company is a party or by which it is bound; and (viii) no other obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of any Company Securities. None of the Company or any of its Subsidiaries is party to any Contract that obligates it to repurchase, redeem or otherwise acquire any Company Securities. There are no accrued and unpaid dividends with respect to any outstanding shares of Company Common Stock. The Company does not have a stockholder rights plan in effect.
Beneficial Ownership of Registrable Securities (a) Type and Number of Registrable Securities beneficially owned:
Warrantholder not a Shareholder Except as may be specifically provided herein, nothing in this Indenture or in the holding of a Warrant Certificate, entitlement to a Warrant or otherwise, shall, in itself, confer or be construed as conferring upon a Warrantholder any right or interest whatsoever as a Shareholder, including, but not limited to, the right to vote at, to receive notice of, or to attend, meetings of Shareholders or any other proceedings of the Corporation, or the right to Dividends and other allocations.
Class B Shares (i) In consideration of the Underwriter’s services as principal underwriter of each Fund’s Class B shares pursuant to this Agreement and in accordance with the provisions of the Trust’s Second Amended and Restated Distribution and Service Plan (the “Plan”) in respect of such shares, each Fund agrees: (I) to pay to the Underwriter or, at the Underwriter’s direction, to a third party, monthly in arrears on or prior to the 5th business day of the following calendar month (A) a service fee (the “Service Fee”) equal to 0.25 of 1% per annum of the average daily net asset value of the Class B shares of such Fund outstanding from time to time, and (B) the Underwriter’s “Allocable Portion” (as hereinafter defined) of a fee (the “Distribution Fee”) equal to 0.75 of 1% per annum of the average daily net asset value of the Class B shares of such Fund outstanding from time to time, and (II) to withhold from redemption proceeds in respect of Class B shares of such Fund the Underwriter’s Allocable Portion of the Contingent Deferred Sales Charges (“CDSCs”) payable in respect of such redemption as provided in the current Prospectus of such Fund and to pay the same over to the Underwriter or, at the Underwriter’s direction, to a third party, at the time the redemption proceeds in respect of such redemption are payable to the holder of the Class B shares redeemed.
(ii) The Underwriter will be deemed to have performed all services required to be performed in order to be entitled to receive its Allocable Portion of the Distribution Fee payable in respect of the Class B shares of the Funds upon the settlement date of each sale of a “Commission Share” (as defined in the Allocation Schedule attached hereto as Schedule B) of the Funds taken into account in determining the Underwriter’s Allocable Portion of such Distribution Fees.
(iii) Notwithstanding anything to the contrary set forth in this Agreement or (to the extent waiver thereof is permitted thereby) applicable law, each Fund’s obligation to pay the Underwriter’s Allocable Portion of the Distribution Fees payable in respect to the Class B shares of the Funds shall not be terminated or modified for any reason (including a termination of this Agreement) except: (a) to the extent required by a change in the 1940 Act, the rules thereunder or the Conduct Rules of FINRA, in each case enacted or promulgated after Xxxxx 00, 0000, (x) on a basis which does not alter the Underwriter’s Allocable Portion of the Distribution Fees computed with reference to Commission Shares the Date of Original Issuance (as defined in the Allocation Schedule) of which occurs on or prior to the adoption of such termination or modification and with respect to Free Shares (as defined in the Allocation Schedule) which would be attributed to such Underwriter under the Allocation Schedule with reference, or (c) in connection with a “Complete Termination” (as hereinafter defined) of the Plan.
(iv) The Funds will not take any action to waive or change any CDSC in respect of the Class B shares, except as provided in each Fund’s current Prospectus or statement of additional information forming a part of that Fund’s initial Registration Statement on the date such Fund’s initial Registration Statement was declared effective by the SEC, without the consent of the Underwriter and the permitted assigns of all or any portion of its rights to its Allocable Portion of the CDSCs.
(v) Notwithstanding anything to the contrary in this Agreement, neither the termination of the Underwriter’s role as principal distributor of the Class B shares of a Fund, nor the termination of this Agreement with respect to a Fund, nor the termination of the Plan with respect to a Fund will terminate the Underwriter’s right to its Allocable Portion of the CDSCs in respect of the Class B shares of each Fund.
(vi) Notwithstanding anything to the contrary in this Agreement, the Underwriter may assign, sell or pledge (collectively, “Transfer”) its rights to the Service Fees and its Allocable Portion of the Distribution Fees and CDSCs (but not its obligations to the Funds under this Agreement) to raise funds to make the expenditures related to the distribution of Class B shares of a Fund and in connection therewith, upon receipt of notice of such Transfer, a Fund shall pay, or cause to be paid, to the assignee, purchaser or pledgee (collectively with their subsequent transferees, “Transferees”) such portion of the Underwriter’s Service Fees, Allocable Portion of the Distribution Fees and CDSCs in respect of the Class B shares of a Fund so Transferred. Except as provided in (iii) above and notwithstanding anything to the contrary set forth elsewhere in this Agreement, to the extent the Underwriter has Transferred its rights thereto to raise funds as aforesaid, a Fund’s obligation to pay the Underwriter’s Allocable Portion of the Distribution Fees and CDSCs payable in respect of the Class B shares of a Fund shall be absolute and unconditional and shall not be subject to dispute, offset, counterclaim or any defense whatsoever, at law or equity, including, without limitation, any of the foregoing based on the insolvency or bankruptcy of the Underwriter (it being understood that such provision is not a waiver of the Funds’ right to pursue the Underwriter and enforce claims against the assets of the Underwriter other than the Underwriter’s right to the Distribution Fees and CDSCs in respect of the Class B shares of each Fund, which have been so transferred in connection with such Transfer). The Funds agree that each such Transferee is a third party beneficiary of the provisions of this clause (vi) but only insofar as those provisions relate to Distribution Fees and CDSCs transferred to such Transferee.
(vii) For purposes of the Agreement, the term “Allocable Portion” of Distribution Fees and CDSCs payable in respect of the Class B shares of a Fund shall mean the portion of such Distribution Fees and CDSCs allocated to the Underwriter.
(viii) For purposes of this Agreement, the term “Complete Termination” of the Plan in respect of a Fund means a termination of the Plan involving the complete cessation of the payment of Distribution Fees in respect of all Class B shares of the Funds, and the termination of the Plan and the complete cessation of the payment of distribution fees pursuant to any other distribution Plan pursuant to Rule 12b-1 under the 1940 Act in respect of the Class B shares of the Funds and any successor fund or the Funds acquiring a substantial portion of the assets of the Funds and for every future class of shares which has substantially similar characteristics to the Class B shares of the Funds taking into account the manner of payment and amount of sales charge, CDSC or other similar charges borne directly or indirectly by the holders of such shares; provided that (a) the Trustees of the Trust, including the Independent Trustees of the Trust, shall have determined that such termination is in the best interest of the Funds and the shareholders of the Funds, and (b) such termination does not alter the CDSC as in effect at the time of such termination applicable to Commission Shares of the Funds, the Date of Original Issuance (as defined in the Allocation Schedule) of which occurs on or prior to such termination.
(ix) The Underwriter may reallow any or all of the Distribution and Service Fees and CDSCs which it is paid under the Agreement to such dealers as the Underwriter may from time to time determine.
(x) The Underwriter may fix quantity discounts and other similar variances or waivers of the CDSCs not inconsistent with the provisions of the 1940 Act; provided however, that the Underwriter shall not impose any commission, permit any quantity discount, or impose any other similar waiver or variance in connection with the sale of Class B shares except as disclosed in each Fund’s current Prospectus.
Right Certificate Holder Not Deemed a Shareholder No holder, as such, of any Right Certificate shall be entitled to vote, receive dividends or be deemed for any purpose the holder of the Preferred Shares or any other securities of the Company which may at any time be issuable on the exercise of the Rights represented thereby, nor shall anything contained herein or in any Right Certificate be construed to confer upon the holder of any Right Certificate, as such, any of the rights of a shareholder of the Company or any right to vote for the election of directors or upon any matter submitted to shareholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting shareholders (except as provided in Section 25 hereof), or to receive dividends or subscription rights, or otherwise, until the Right or Rights evidenced by such Right Certificate shall have been exercised in accordance with the provisions hereof.
Rights Certificate Holder Not Deemed a Shareholder No holder, as such, of any Rights Certificate shall be entitled to vote, receive dividends or be deemed for any purpose to be the holder of the Preferred Shares or any other securities of the Company which may at any time be issuable on the exercise of the Rights represented thereby, nor shall anything contained herein or in any Rights Certificate be construed to confer upon the holder of any Rights Certificate, as such, any of the rights of a shareholder of the Company or any right to vote for the election of directors or upon any matter submitted to shareholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting shareholders (except as provided in Section 25 hereof), or to receive dividends or subscription rights, or otherwise, until the Right or Rights evidenced by such Rights Certificate shall have been exercised in accordance with the provisions hereof.
Restrictions on Public Sale by Holders of Registrable Securities Each Holder of Registrable Securities agrees, if requested by the underwriters of an Underwritten Offering, to enter into a customary letter agreement with such underwriters providing such Holder will not effect any public sale or distribution of Registrable Securities during the 60 calendar day period beginning on the date of a prospectus or prospectus supplement filed with the Commission with respect to the pricing of any Underwritten Offering, provided that (i) the duration of the foregoing restrictions shall be no longer than the duration of the shortest restriction generally imposed by the underwriters on the Partnership or the officers, directors or any other Affiliate of the Partnership on whom a restriction is imposed and (ii) the restrictions set forth in this Section 2.07 shall not apply to any Registrable Securities that are included in such Underwritten Offering by such Holder. In addition, this Section 2.07 shall not apply to any Holder that is not entitled to participate in such Underwritten Offering, whether because such Holder delivered an Opt-Out Notice prior to receiving notice of the Underwritten Offering or because such Holder holds less than $15 million of the then-outstanding Registrable Securities.
Right Certificate Holder Not Deemed a Stockholder No holder, as such, of any Right Certificate shall be entitled to vote, receive dividends or be deemed for any purpose the holder of the Preferred Shares or any other securities of the Company which may at any time be issuable on the exercise of the Rights represented thereby, nor shall anything contained herein or in any Right Certificate be construed to confer upon the holder of any Right Certificate, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in Section 25 hereof), or to receive dividends or subscription rights, or otherwise, until the Right or Rights evidenced by such Right Certificate shall have been exercised in accordance with the provisions hereof.
