Merger Sub Common Stock At the Effective Time, each share of common stock, par value $0.01 per share, of Merger Sub (“Merger Sub Common Stock”) issued and outstanding immediately prior to the Effective Time shall be automatically converted into one fully paid and nonassessable share of common stock, par value $0.01 per share, of the Surviving Corporation.
Purchaser Common Stock Each share of common stock, par value $0.001 per share, of the Purchaser (the “Purchaser Common Stock”) issued and outstanding immediately prior to the Effective Time shall be converted into and become one newly and validly issued, fully paid and nonassessable share of common stock of the Surviving Corporation.
Common Stock Record Date Each Person in whose name any certificate for shares of Common Stock is issued (or to whose broker’s account is credited shares of Common Stock through the DWAC system) upon the exercise of Warrants shall for all purposes be deemed to have become the holder of record for the Common Stock represented thereby on, and such certificate shall be dated, the date on which submission of the Notice of Exercise was made, provided that the Warrant Certificate evidencing such Warrant is duly surrendered (but only if required herein) and payment of the Exercise Price (and any applicable transfer taxes) is received on or prior to the Warrant Share Delivery Date; provided, however, that if the date of submission of the Notice of Exercise is a date upon which the Common Stock transfer books of the Company are closed, such Person shall be deemed to have become the record holder of such shares on, and such certificate shall be dated, the next succeeding day on which the Common Stock transfer books of the Company are open.
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.
Series A Preferred Stock The Series A Preferred Stock shall have the following rights, preferences and limitations:
i. The Series A Preferred Stock shall have a liquidation preference of $100 per share or an aggregate liquidation preference of $6.4 million. The liquidation preference shall be senior to all other securities of the Company including the Series B, C and D Preferred Stock described below and the Common Stock.
ii. The Series A Preferred Stock shall not have specified dividends but shall be entitled to participate on an as-converted basis in any dividends paid on the Common Stock of the Company or the Series B, C or D Preferred Stock.
iii. The Series A Preferred Stock shall not be subject to mandatory redemption at the election of the Investors but shall be subject to redemption at a redemption price of $100 per share by the Company at any time on or after ten (10) years after the original date of issuance.
iv. The Series A Preferred Stock shall be convertible into shares of Common Stock at a conversion price of $1.00 per share. Each share of Series A Preferred Stock shall be initially convertible into 100 shares of Common Stock based on the $100 liquidation preferential amount thereof. The conversion price and number of shares will be subject to customary anti-dilution adjustments for stock splits, share dividends, recapitalizations, stock issuances, etc., with the anti-dilution adjustment for the issuance of shares at less than the conversion price being determined on the "weighted average method."
v. Subject to the provisions of Section 3A hereof, the Series A Preferred Stock, voting as a single class, shall be entitled to elect a majority (4) of the Board of Directors. On all other matters, the holders of the Series A Preferred Stock shall vote together with the holders of the Common Stock and the Series B, C and D Preferred Stock and shall be entitled to cast one vote for each share of Common Stock into which the Series A Preferred Stock is convertible.
vi. The approval of the Series A Preferred Stock, voting as a separate class, shall be required for the issuance of any securities having liquidation or other rights senior or superior or equal in any respect to the rights of the Series A Preferred Stock.
Series B Preferred Stock 1 Shares.......................................................................1
Preferred Stock Record Date Each person in whose name any certificate for a number of one one-thousandths of a share of Preferred Stock (or Common Stock and/or other securities, as the case may be) is issued upon the exercise of Rights shall for all purposes be deemed to have become the holder of record of such fractional shares of Preferred Stock (or Common Stock and/or other securities, as the case may be) represented thereby on, and such certificate shall be dated, the date upon which the Rights Certificate evidencing such Rights was duly surrendered and payment of the Purchase Price (and all applicable transfer taxes) was made; provided, however, that if the date of such surrender and payment is a date upon which the Preferred Stock (or Common Stock and/or other securities, as the case may be) transfer books of the Company are closed, such Person shall be deemed to have become the record holder of such shares (fractional or otherwise) on, and such certificate shall be dated, the next succeeding Business Day on which the Preferred Stock (or Common Stock and/or other securities, as the case may be) transfer books of the Company are open. Prior to the exercise of the Rights evidenced thereby, the holder of a Rights Certificate shall not be entitled to any rights of a stockholder of the Company with respect to shares for which the Rights shall be exercisable, including, without limitation, the right to vote, to receive dividends or other distributions or to exercise any preemptive rights, and shall not be entitled to receive any notice of any proceedings of the Company, except as provided herein.
Class B Units Class B Unitholders shall not be entitled to vote in any matters relating to the Company, unless otherwise reserved to the Members by the Act. In addition to the other rights and obligations of Class B Unitholders hereunder, Class B Units shall entitle the holder of such Class B Units to (i) Tax Distributions pursuant to Section 4.01(b), and (ii) a preferred return equal to the Class B Preferred Return Amount. The Class B Preferred Return Amount shall not be required to be paid annually but shall accrue and become payable at the earlier of (x) the fifth (5th) anniversary of the Effective Time, or (y) a liquidation of, or a taxable sale of substantially all of the assets of, the Company. Upon the occurrence of an event referenced in clause (y) above, each Class B Unitholder shall also be paid such Class B Unitholder’s Class B Preferred Return Base Amount, in addition to all of the outstanding, accrued and unpaid Class B Preferred Return Amount. On the seventh (7th) anniversary of the Effective Time, each Class B Unitholder may, at its option and in accordance with the notice and other procedural provisions set forth in Section 11.01(a) (the “7 Year Put Option”), sell all (but not less than all) of its Class B Units to the Company for an amount equal to such Class B Unitholder’s Class B Preferred Return Base Amount plus any outstanding and accrued Class B Preferred Return Amount of such Class B Unitholder (the “Class B Option Consideration”) and, upon the exercise of the 7 Year Put Option by any Class B Unitholder, the Company shall purchase all of such holder’s Class B Units for the Class B Option Consideration. Notwithstanding anything herein to the contrary, no Class B Preferred Return Amount shall be due and payable with respect to such Class B Units pursuant this Section 3.02(b) at such time or times specified in this Section 3.02(b) unless such Class B Units remain issued and outstanding at such time or times and no Redemption or Direct Exchange of such Class B Units described in Article XI hereof has occurred.
Parent Common Stock At and after the Effective Time, each share of Parent Common Stock issued and outstanding immediately prior to the Effective Time shall remain an issued and outstanding share of common stock of the Surviving Corporation and shall not be affected by the Merger.
Common Shares 4 Company...................................................................................... 4